S T U DYG U I D ES T U DYG U I D E

European Court of Human Rights

Written by Buğra ZAİMOĞLU

Supervised by Deniz YONTUK

Written by Buğra ZAİMOĞLU

Supervised by Deniz YONTUK

LETTER OF THE SECRETARY-GENERAL

Most Esteemed Participants,

On behalf of our academic and organization teams, once again I would like to welcome you

to the Model Courts of Justice family as the Secretary-General of the Model Courts of Justice

Conference 2020! My name is Deniz YONTUK, and I am a third-grade student at Ankara

University, Faculty of Law.

The European Court of Human Rights (‘ECHR’) was established with a mandate to ensure

that States which signed up to the European Convention on Human Rights stuck by their

conjectural obligations, on 21 January 1959.

This year, European Court of Human Rights, will deliver its Judgment on a pending case

examining the Mechanisms of International Protection and the Delimitation of the Signatory

States' positive obligations resulting from Refugee Law.

The Study Guide for the European Court of Human Rights was prepared by Mr. Bugra

ZAIMOGLU. He is the most understandable and reasonable person I have ever worked with.

In this whole writing process, we didn't tackle any kind of obstacles because of his

disciplined way of management. Therefore, I would like to thank him for all of his hard work.

I highly recommend every participant to read the Study Guide, the Handbook, the Rules of

Procedure and the other documents available on our website before attending our court

sessions. Please do not hesitate to contact me via secretarygeneral@modelcj.org in case you

have any questions regarding the conference or the committee.

Best Regards,

Deniz YONTUK

Secretary-General of Model Courts of Justice 2020

LETTER OF THE UNDER-SECRETARY-GENERAL

Distinguished Participants,

First of all, I would like to welcome you to Model Courts of Justice 2020, the ninth session of

our conference. My name is Yaşar Buğra ZAİMOĞLU and I am a junior student at Ankara

University, Faculty of Law. This year, I will be having the honor and pleasure to serve you as

the Under-Secretary-General responsible for the European Court of Human Rights.

In this year’s conference, the European Court of Human Rights will hear a case, which goes

hand in hand with a prominent dilemma of refugee law. The case, namely M.N. and Others v.

Belgium will allow all participants to dive into the complications that come along with the

increasing amount of refugees and asylum seekers arriving in Europe. Complex phenomena,

such as the principle of national sovereignty and its boundaries will be discussed upon. In this

regard, the outcome of the case at hand has the power to create a common understanding

concerning the cohabitation of national interests and the satisfaction of the needs of people

seeking for international shelter.

I would like to offer my sincere thanks to our honorable Secretary General Mr. Deniz

YONTUK, who has given me this valuable opportunity and supported me in the creation

process of this work. Furthermore, I would like to express my gratitude to my lovely

colleagues from the academic team who have passionately contributed to the academic

excellency of this year’s conference. Last but not least, I would like to thank the members of

the organization team lead by our esteemed Director General Ms. İrem ÖZDAMAR, without

whom this organizational perfection would not have become reality.

If you have any questions, please do not hesitate to contact me.

Yaşar Buğra ZAİMOĞLU

Under-Secretary-General responsible for the European Court of Human Right

INDEX

PART I: EUROPEAN COURT OF HUMAN RIGHTS

A. INTRODUCTION

I. History

II. Structure

III. Submitting an Application

IV. Proceedings before the Court

a. Admissibility

b. Merits

c. Friendly Settlements

d. Interim Measures

V. Jurisdiction

VI. Sources of Law Applicable to the ECHR

a. European Convention on Human Rights

PART II: M.N. AND OTHERS V. BELGIUM

A. INTRODUCTION TO THE CASE

I. Overview

a. The History of Syria

b. The Chronology of the Civil War in Syria

c. The Implications of the Syrian Civil War on the Socio-Economic Situation in the Country

i. Civilian casualties

ii. Unemployment and poverty

iii. Displacement

iv. Lack of infrastructure

v. Insufficient education

d. Socioeconomic and Humanitarian Situation in Aleppo

e. Waves of Migration to Europe

f. Migration, Asylum and Integration in Belgium

g. Asylum procedures in Belgium

II. Timeline of the Case

a. Situation of the family

b. The interpretation of “jurisdiction”

c. Judicial processes before the Belgian courts and the question of effective remedy

III. Claims

a. Claims of M.N. and Others

b. Claims of Belgium

B. APPLICABLE LAW

I. Treaties and Conventions

a. The European Convention on Human Rights

1. Article 1- Obligation to respect Human Rights

2. Article 3- Prohibition of torture

3. Article 6- Right to a fair trial

4. Article 13- Right to an effective remedy

b. The Universal Declaration of Human Rights

1. Article 5

2. Article 8

3. Article 10

4. Article 14

c. 1951 Convention Relating to the Status of Refugees

1. Article 1(A)(2)- Definition of the term “refugee”

2. Article 2- General Obligation

3. Article 9- Provisional measures

II. Directives and regulations

a. Regulation No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas

1. Article 6- Consular territorial competence

2. Article 25- Issuing of a visa with limited territorial validity

3. Article 31- Refusal of visa

b. Regulation No 604/2013 of the European Parliament and of the Council

1.Article 3- Access to the procedure for examining an application for international protection

III. Principles of International Law

a. The Principle of State Sovereignty

b. The Principle of Non-Interference

IV. Principles of Human Rights Law

a. Universality and Inalienability

b. Indivisibility

c. Interdependence and Interrelatedness

d. Equality and Non-Discrimination

e. Participation and Inclusion

f. Accountability and the Rule of Law

C. CONCLUSION

BIBLIOGRAPHY

PART I: EUROPEAN COURT OF HUMAN RIGHTS

A. INTRODUCTION

I. History

The first European initiative towards creating a court responsible for the enforcement of

fundamental freedoms and human rights was taken by the European Movement at the

Congress of Europeas. A number of proposals were submitted suggesting the foundation of a 1

specialized regional court. The preparation of the Convention for the Protection of Human 2

Rights and Fundamental Freedoms (commonly referred to as the European Convention on

Human Rights) was the following phase, which was an important step towards the protection

of universally recognised rights and freedoms. In this context, the European Court of Human 3

Rights was established, with a mandate (under Article 19 of the Convention) to ensure that

signatory States stuck by the respective obligations guaranteed in the Convention. The Court 4

began operating in 1959 and with more than 10,000 judgements concerning alleged

violations, it is an active contributor to legal security and prosperity within its jurisdiction. 5

The amount of applications is gradually rising which hints at the intensifying need for the

intervention of the European Court of Human Rights for the preservation of human rights and

fundamental freedoms. 90% of the Court’s judgements since its creation being delivered 6

between 1998 and 2008, is a clear evidence for the increasing importance of this judiciary

instance. Undoubtedly, the reform undertaken in 1998 has also contributed to this noticeable 7

increase in applications. 8

1 Merrills J, 'European Convention On Human Rights | Europe [1950]' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/European-Convention-on-Human-Rights-Europe-1950> accessed 1 September 2019 2 ibid. 3 ibid. 4 Weller K and others, 'A Brief History Of The European Court Of Human Rights' (RightsInfo, 2019) <https://rightsinfo.org/brief-history-european-court-human-rights/> accessed 1 September 2019 5 ibid. 6 (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/Facts_Figures_1998_2008_ENG.pdf> accessed 1 September 2019 7 ibid. 8Merrills J, 'European Convention On Human Rights | Europe [1950]' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/European-Convention-on-Human-Rights-Europe-1950> accessed 1 September 2019

Through the years, the European Convention on Human Rights has has gone through several

amendments which were implemented by the insertion of additional Protocols, such as:

Protocol No. 6 concerning the abolition of the death penalty, Protocol No. 7 on procedural

safeguards relating to the expulsion of aliens, and Protocol No. 12 providing for a general

prohibition on discrimination are some examples that can be enumerated in this regard. 9

Some of the Protocols which were added to the existing framework have a reformative nature

as some of them have altered the functioning of the European Court of Human Rights and

contributed to an increased efficiency. Besides Protocol No. 15 and Protocol No. 16, there 10

are two remarkable protocols, namely Protocol No. 11 (1998) and Protocol No. 14 (2010)

which represent the reformative efforts of the Court. Pursuant to Protocol No.11, the 11

European Court of Human Rights was authorized to hear individual -rather than exclusively

interstate- complaints which was not possible prior to protocol at hand. Protocol No. 14, on 12

the other hand, introduced new admissibility criteria, enabling the Court to refuse to consider

cases in which the applicant had not suffered significant disadvantages or cases in which

important questions concerning national law are involved. While Protocol No.11 has 13

increased the number of applications arriving at the Court, Protocol No.14 has had a reducing

effect on the workload of the European Court of Human Rights as the petitions and

complaints have become subject to a filtering mechanism. 14

Besides the Convention’s universally accepted quality, there is no clause permitting the

accession by countries which are not members of the Council of Europe. From time to time, 15

9 (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/Anni_Book_Chapter01_ENG.pdf> accessed 1 September 2019 10 Weller K and others, 'A Brief History Of The European Court Of Human Rights' (RightsInfo, 2019) <https://rightsinfo.org/brief-history-european-court-human-rights/> accessed 1 September 2019 11 (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/Reforms_history_ENG.pdf> accessed 1 September 2019 12 'European Court Of Human Rights | International Justice Resource Center' (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 1 September 2019 13 Weller K and others, 'A Brief History Of The European Court Of Human Rights' (RightsInfo, 2019) <https://rightsinfo.org/brief-history-european-court-human-rights/> accessed 1 September 2019 14 (Justiceinitiative.org, 2019) <https://www.justiceinitiative.org/uploads/4d7dcfc0-ff44-45bb-951f-5047b529148d/echr2-protocol14-20120227.pdf> accessed 1 September 2019 15 (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/Anni_Book_Chapter01_ENG.pdf> accessed 1 September 2019

proposals towards the insertion of such a clause is raised, but hitherto an extension of the

circle has not become reality. 16

II. Structure

The European Court of Human Rights is divided into five sections (also referred to as

administrative entities) with each having a judicial chamber composed of a President, Vice

President, and a number of judges. The Court consists of 47 judges who are selected by the 17

Parliamentary Assembly of the Council from a list of applicants nominated by the member

states. 18

For the maximization of productivity and efficiency, the judges of the Court work in four

different groups, or “judicial formations”, to whom the applications are allocated. The 19

working groups are structured as follows:

1. Single Judge: only rules on the admissibility of applications that are clearly inadmissible

based on the material submitted by the applicant.

2. Committee: composed of 3 judges, committees rule on the admissibility of cases as well as

the merits when the case concerns an issue covered by well-developed case law (the decision

must be unanimous).

3. Chamber: composed of 7 judges, chambers primarily rule on admissibility and merits for

cases that raise issues that have not been ruled on repeatedly (a decision may be made by a

majority). Each chamber includes the Section President and the “national judge” (the judge

with the nationality of the State against which the application is lodged).

4. Grand Chamber: composed of 17 judges, the Grand Chamber hears a small, select number

of cases that have been either referred to it (on appeal from a Chamber decision) or

relinquished by a Chamber, usually when the case involves an important or novel question.

Applications never go directly to the Grand Chamber. The Grand Chamber always includes

16 ibid. 17 'European Court Of Human Rights | International Justice Resource Center' (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 2 September 2019 18 ibid. 19 ibid.

the President and Vice-President of the Court, the five Section presidents, and the national

judge. 20

III. Submitting an Application to the Court

Article 47 of the Rules of Court serves a signpost when it comes to the requirements that

applications to the European Court of Human Rights must comply with. The Court 21

periodically adjust its rules and procedures and since 2013 there is a tendency towards

introducing stricter requirements for individual applications. 22

For the submission of an application, applicants must fill the application form (online

available) and together with copies of all relevant documents, the filled application form must

be submitted by postal mail. 23

If an application does not fulfill all of the determined requirements, the Court may choose not

to examine this application. In recent years, a vast majority of applications were struck from 24

the list or categorized as inadmissible as they failed to meet one or more of the admissibility

criteria. 25

IV. Proceedings before the Court

Proceedings before the Court are conducted in writing, whereas public hearings are rare. 26

The submission of the application does not come along with any costs and applicants may

apply for legal aid to cover the expenses that may arise later in the proceedings. 27

20 ibid. 21 ibid. 22 'Stricter Time Limits And New Admissibility Requirements Introduced To The European Convention On Human Rights | European Council On Refugees And Exiles (ECRE)' (Ecre.org, 2019) <https://www.ecre.org/stricter-time-limits-and-new-admissibility-requirements-introduced-to-the-european-convention-on-human-rights/> accessed 2 September 2019 23 'European Court Of Human Rights | International Justice Resource Center' (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 2 September 2019 24 ibid. 25 ibid. 26 ibid. 27 ibid.

While there is no need for a lawyer while lodging the complaint, applicants should have

representation after the case is declared as admissible, and thus should be represented by a

lawyer in hearings before the Court. 28

In the European Court of Human Rights, the applications go through two phases, namely

admissibility procedure and procedure on merits. The speed and course of the proceedings 29

are determined by the scale of the case at hand. While some applicants may receive a 30

decision within a few months, others may have to wait for years for a judgement by the

Court. 31

Image 1: European Court of Human Rights Grand Chamber 32

a. Admissibility

Applications arriving at the European Court of Human Rights become subject to a

preliminary examination regarding their admissibility which are either conducted by a single

judge, a three-judge committee, or a seven judge chamber. Following criteria are taken into 33

consideration while evaluating the admissibility of an application:

28 ibid. 29 'The ECHR Procedure In A Nutshell' (Meyer et Nouzha Avocats CEDH et Droits de l'Homme, 2019) <https://www.meyer-nouzha-avocats.com/english/european-court-of-human-rights-skills/european-court-of-human-rights-procedure/> accessed 3 September 2019 30 'European Court Of Human Rights | International Justice Resource Center' (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 3 September 2019 31 ibid. 32 'Hearings At The ECHR-Webcast' (Echr.coe.int, 2019) <https://www.echr.coe.int/Pages/home.aspx?p=hearings&c=> accessed 16 September 2019 33 'European Court Of Human Rights | International Justice Resource Center' (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 3 September 2019

1. Exhaustion of domestic remedies

2. Six-month application deadline (from the final domestic judicial decision)

3. Complaint against a State party to the European Convention on Human Rights

4. Applicant suffered as a significant disadvantage” 34

The failure to meet one of the aforementioned criteria suffices to declare an application

inadmissible and consequently, the Court will not proceed any further. There is no appeal 35

from a decision of inadmissibility. 36

b. Merits

Once the application passes the admissibility check, it will be assigned to one of the five

sections of the Court, the accused State will be notified of the complaint and both parties are

permitted to file observations to the Court. Depending on the presence of a specific request 37

by the Court, the respective information must be added to the observations. Furthermore, the

parties can include other data if they classify them as relevant for the case. The Court has 38

the discretion to either consider admissibility and merits separately or concurrently; if it

prefers to consider admissibility and merits together, it must notify the parties. 39

There is a three-month period before the decision becomes final, when a Chamber issues a

judgement on the merits. Within these three-months, the parties may demand the 40

consideration of the application by the Grand Chamber. However, only a limited number of 41

cases are heard by the Grand Chamber. 42

34 ibid. 35 ibid. 36 ibid. 37 'The ECHR Procedure In A Nutshell' (Meyer et Nouzha Avocats CEDH et Droits de l'Homme, 2019) <https://www.meyer-nouzha-avocats.com/english/european-court-of-human-rights-skills/european-court-of-human-rights-procedure/> accessed 4 September 2019 38 'European Court Of Human Rights | International Justice Resource Center' (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 4 September 2019 39 ibid. 40 ibid. 41 (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/FAQ_GC_ENG.pdf> accessed 16 September 2019 42 'European Court Of Human Rights | International Justice Resource Center' (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 4 September 2019

If the judgement is in favor of the applicant, the Court may award satisfaction (in the form of

monetary compensation) and require the respective State to cover the costs of bringing the

case. If the Court does not observe any violation of the European Convention on Human 43

Rights, the applicant is not liable for the State’s legal expenses. 44

States are bound by the decisions of the European Court of Human Rights and must

implement them accordingly. The judgements are enforced by the Committee of Ministers 45

of the Council of Europe. While these measures may include the amendment of legislation 46

to prohibit further violations, the Court is not authorized to overrule a national decision or

annul national laws. 47

c. Friendly Settlements

The procedure of friendly settlements before the European Court of Human Rights is an

important tool for the reduction of the Court’s caseload. During this procedure, which is a 48

litigation, the parties are entitled to reach a settlement and thus, resolve the dispute without

any further proceedings. Negotiations are expected to be private and without prejudice to 49

the arguments of the parties in contentious proceedings. For the applicant, a settlement has 50

the potential to result in a quicker justice, bearing in mind that the Court does not tend to

prescribe the respective remedies and the securement of other forms of reparation. Taking 51

the advantages of this method into consideration, the Court announced in 2018 that it wished

to extend the range of cases closed with friendly settlements. 52

43 ibid. 44 ibid. 45 ibid. 46 ibid. 47 ibid. 48 Keller H, M Forowicz,L Engi, Friendly Settlements Before The European Court Of Human Rights (Oxford University Press 2010) 49 Dániel K, 'The Friendly Settlement Procedure And The ECHR | Karsai Dániel Ügyvédi Iroda' (Karsai Dániel ügyvédi iroda, 2019) <https://drkarsai.hu/en/friendly-settlement-procedure/> accessed 5 September 2019 50 'Rules Of Court Rule 62§2' (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf> accessed 9 September 2019 51 McGregor L, 'Alternative Dispute Resolution And Human Rights: Developing A Rights-Based Approach Through The ECHR' (2015) 26 European Journal of International Law 52 Dániel K, 'The Friendly Settlement Procedure And The ECHR | Karsai Dániel Ügyvédi Iroda' (Karsai Dániel ügyvédi iroda, 2019) <https://drkarsai.hu/en/friendly-settlement-procedure/> accessed 9 September 2019

Once a friendly settlement has been reached, the case is struck out of the list of the Court and

a brief statement with regard to the solutions will be published. This decision will then be 53

transmitted to the Committee of Ministers, which supervises the execution of the terms of the

friendly settlement. If the parties cannot reach consensus, the Court will proceed and deliver 54

a judgement on the merits. 55

d. Interim Measures

The European Court of Human Rights may indicate interim measures to any signatory state

of the European Convention on Human Rights, under Rule 39 of the Rules of Court. These 56

measures are introduced to protect the applicant from further harm the case proceeds before

the Court. Requests for interim measures are only granted when an imminent risk of 57

irreparable harm is observed and decided in connection with proceedings before the Court 58

without prejudging any decisions on the admissibility or merits of the case at hand. Interim 59

measures, which the Court introduces on an exceptional basis are indicated to the respondent

Government; however, it is also possible for the Court to indicate measures to applicants. 60

The length of an interim measures application is determined to cover the duration of the

proceedings before the Court or for a shorter period and if necessary, the application of Rule

39 of the Rules of Court may be discontinued at any time by a decision of the Court. 61

Interim measures are, in practice, applied only in a very limited number of cases and most

concern expulsion and extradition. The most typical cases for the interim measures are those 62

where, if the expulsion or extradition takes place, the applicants would fear for their lives

(thus engaging Article 2 of the European Convention on Human Rights ensuring right to life)

53 'European Convention On Human Rights Article 39' (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 9 September 2019 54 ibid. 55 (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 9 September 2019 56 'Rules Of Court Rule 39' (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf> accessed 9 September 2019 57 (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 9 September 2019 58 ibid. 59 'European Court Of Human Rights, Interim Measures' (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/FS_Interim_measures_ENG.pdf> accessed 9 September 2019 60 ibid. 61 ibid. 62 ibid.

or would face ill-treatment prohibited by Article 3 which prohibits torture or inhuman or

degrading treatment. Furthermore, interim measures may be indicated in response to certain 63

requests concerning the right to a fair trial (Article 6 of the Convention) and the right to

respect for private and family life (Article 8 of the Convention). 64

V. Jurisdiction

The Court has jurisdiction to decide complaints concerning violations (mostly affecting civil

and political rights) of the European Convention on Human Rights which can be submitted

by both individuals and signatory States. Unless there is no complaint submitted by any of 65

the aforementioned actors, the Court cannot take up a case on its own initiative. 66

Additionally, the person, group or NGO filing the application does not have to be a citizen of

a State party. 67

Nonetheless, complaints submitted to the Court must concern violations of the Convention

allegedly committed by a State party to the Convention and that significantly and directly

affected the applicant party. Currently, there are 47 Signatory states (corresponding to the 68

Member States of the Council of Europe), some of which have ratified one or more of the

Additional Protocols to the Convention, which protect additional rights. 69

On August 1, 2018, the European Court of Human Rights has received advisory jurisdiction.

Under Protocol 16 to the European Convention on Human Rights, which entered into force 70

in the above mentioned date, the highest domestic courts in the Signatory States are

authorized to request European Court advisory opinions on certain questions of interpretation

of the European Convention and its additional protocols. Notably, these questions must 71

arise out of cases pending before the respective domestic court. The extension of the Court’s 72

advisory jurisdiction aims to achieve two goals. These are the reduction in the ECHR’s 73

63 ibid. 64 ibid. 65 (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 9 September 2019 66 ibid. 67 ibid. 68 ibid. 69 ibid. 70 ibid. 71 Dzehtsiarou KN O'Meara, Advisory Jurisdiction And The European Court Of Human Rights (2014) 72 (Ijrcenter.org, 2019) <https://ijrcenter.org/european-court-of-human-rights/> accessed 9 September 73 Dzehtsiarou KN O'Meara, Advisory Jurisdiction And The European Court Of Human Rights (2014)

excessive docket and the enhancement of dialogue between the European Court of Human

Rights and highest domestic courts. 74

VI. Sources of Law Applicable to the ECHR

a. European Convention on Human Rights

The European Convention on Human Rights (ECHR) is an international human rights treaty

with 47 signatory states that are members of the Council of Europe who have made a legal

commitment to abide by the determined standards of behaviour and to protect the freedoms

and basic rights of the people inhabiting their territories. Furthermore, it aims to protect the 75

rule of law and promote democracy in European countries. 76

This treaty, whose full name is “Convention for the Protection of Human Rights and

Fundamental Freedoms”, guarantees specific rights and freedoms. 77

“The Convention secures:

● the right to life (Article 2)

● freedom from torture (Article 3)

● freedom from slavery (Article 4)

● the right to liberty (Article 5)

● the right to a fair trial (Article 6)

● the right not to be punished for something that wasn’t against the law at the time

(Article 7)

● the right to respect for family and private life (Article 8)

● freedom of thought, conscience and religion (Article 9)

74 ibid. 75 'What Is The European Convention On Human Rights?' (Amnesty.org.uk, 2019) <https://www.amnesty.org.uk/what-is-the-european-convention-on-human-rights> accessed 12 September 2019 76 ibid. 77 'What Is The European Convention On Human Rights? | Equality And Human Rights Commission' (Equalityhumanrights.com, 2019) <https://www.equalityhumanrights.com/en/what-european-convention-human-rights> accessed 12 September 2019

● freedom of expression (Article 10)

● freedom of assembly (Article 11)

● the right to marry and start a family (Article 12)

● the right not to be discriminated against in respect of these rights (Article 14)

● the right to protection of property (Protocol 1, Article 1)

● the right to education (Protocol 1, Article 2)

● the right to participate in free elections (Protocol 1, Article 3)

● the abolition of the death penalty (Protocol 13)” 78

Image 2: Signatories to the European Convention on Human Rights 79

78 ibid. 79 'What Is The European Convention On Human Rights?' (Amnesty.org.uk, 2019) <https://www.amnesty.org.uk/what-is-the-european-convention-on-human-rights> accessed 21 September 2019

PART II: M.N. AND OTHERS V. BELGIUM

A. INTRODUCTION TO THE CASE

I. Overview

The Syrian civil war, which has morphed into a nightmare for Syria and its neighbors, is a

multifaceted and complex conflict that involves numerous nations, rebel groups and terrorist

organizations. What started as a nonviolent protest in 2011 unexpectedly turned into 80

full-blown warfare with more than 470,000 people being killed, over 1 million injured and

millions more forced to flee their homes and live as refugees. For understanding the entirety 81

of the civil war, aspects such as history must be taken into consideration.

a. The History of Syria

Being part of the Fertile Crescent, where some of the first people on earth practiced cattle

breeding and agriculture, the original civilization in Syria is believed to be one of the most

ancient in the history of mankind. This land was occupied by all sorts of ancient empires 82

including the Egyptians, Hittites, Sumerians Mitanni, Assyrians, Babylonians, Canaanites,

Phoenicians, Arameans, Amorities, Persians, Greeks, and Romans. When the Roman 83

Empire collapsed, Syria became a part of the Byzantine Empire. Around 634 CE, it was

conquered by Muslim Arabs, who promised protection in exchange for taxes, transferring

power to the Islamic State. Stability within this region could not be achieved and eventually, 84

it was seized by the Seljuk Turks and then the Ayyubid dynasty. In 1516, the Ottoman 85

Empire conquered Syria, which remained a part of the empire until its collapse in 1916. 86

Back then, Syrian territory corresponded modern-day Syria, Lebanon, Israel, Jordan,

Palestinian Authority, Gaza Strip, and parts of Turkey and Iraq. 87

80 Marks J, 'Why Is There A Civil War In Syria?' (HISTORY, 2019) <https://www.history.com/news/syria-civil-war-assad-rebels> accessed 15 September 2019 81 ibid. 82 'A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 15 September 2019 83 ibid, 84 'Arabs Conquer Mesopotamia, Syria And Palestine, 634-38 CE' (Fsmitha.com, 2019) <http://www.fsmitha.com/h3/islam08.htm> accessed 15 September 2019 85 'A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 15 September 2019 86 ibid. 87 ibid.

The Sykes-Picot Agreement (1916) from World War I resulted in drastic changes for the

Syrian population: the Ottoman Empire was divided into zones and Syria became a League of

Nations mandate and moved under French control in 1920. Throughout this stage in Syrian 88

history, France did not fulfill the purpose of the mandate and hindered Syrian efforts to

self-governed. Despite numerous negotiations and attempts for self-governance between 89

1928 and 1936, Syria was not recognized as an independent republic until 1944. Although 90

Syria had declared its independence in 1944, French military and personnel did not leave the

country until 1946. After its official declaration of independence on April 17, 1946, Syrian 91

people experienced a turbulent political atmosphere in which they had 20 cabinets and four

constitutions. Traumatic events, such as the Arab-Israeli war, military rebellions (e.g. 92

military rebellion led by Colonel Husni Zayim which has overthrown President Kuwatly in

1949), terrorist attacks and anti-government demonstrations (e.g. anti-government

demonstrations in 1952 which resulted in the loss of 27 lives) have also contributed to the

instability within the country. Despite Syria’s status as a republic, the power mostly 93

remained in the military and not in the parliament for most of the 20th century. It was at 94

this time, when the first Syrian-Soviet Ties were formed. In 1955, the Soviet Union invited 95

Syria to join a pro-Soviet pact , which has enabled Syria to obtain most of its military 96

equipment from the Soviet Union. This pact brought Syria closer to Egypt (as a result of 97

their socialist leanings at the time), which lead to the formation of the United Arab Republic.

This merge could only survive for a few years, as Syria felt threatened by the dominance of 98

88 ibid. 89 Bye T, 'Turmoil: Syria As A French Mandate - Mass Humanities' (Mass Humanities, 2019) <http://masshumanities.org/ph_turmoil-syria-as-a-french-mandate/> accessed 16 September 2019 90 A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 16 September 2019 91 ibid. 92 ibid. 93 '24. Syria (1946-Present)' (Uca.edu, 2019) <https://uca.edu/politicalscience/dadm-project/middle-eastnorth-africapersian-gulf-region/syria-1946-present/> accessed 18 September 2019 94 'A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 18 September 2019 95 'The Syria-Soviet Alliance' (Jewish Policy Center, 2019) <https://www.jewishpolicycenter.org/2009/02/28/the-syria-soviet-alliance/> accessed 18 September 2019 96 ibid, 97 'Syria-USSR Relations' (GlobalSecurity, 2019) <https://www.globalsecurity.org/military/world/syria/forrel-ussr.htm> accessed 18 September 2019 98 'A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 18 September 2019

its partner. The 60s were, like the 50s, characterized by military revolts, frequent coups, 99

bloody riots and civil disorders. Socio-political problems including the issues involving the 100

demilitarized zone on Israel and their occupation of Golan Heights forced Syria to lean closer

toward a socialist regime with the members of the Soviet bloc as their allies. 101

In 1970, General Hafez al-Assad, who served as the Minister of Defense at that time, deposed

President Atassi in a coup attempt, and thus introduced a new era in Syrian history. General 102

Hafez al-Assad was formally approved as president in a referendum held on March 12, 1971

and inaugurated on March 14, 1971. After his inauguration in 1971, Assad created a new

legislature and local councils to govern on a smaller scale. Furthermore, political parties 103

were consolidated, and a new constitution was introduced declaring Syria a secular socialist

state with Islam as its majority religion. The support from both the military and the 104

intelligence secured the power of Assad and allowed him to implement far-reaching changes.

Hafez al-Assad transformed the administrative system of the country in a way that would 105

allow him to act as the president, commander in chief, and chief of the executive awarding

him with towering authorization. He used the ongoing confrontation with Israel as a 106

legitimizing factor for the expansion of the security apparatus and the army (financially

supported by Arab allies and the Soviet Union) and a far-reaching hierarchization,

mobilization and militarization of the society. That, in turn, resulted in a growing 107

identification of the population with the Syrian state. Moreover, wealth experienced in the 108

1970s and the determined approach to the Arab-Israeli Conflict further increased the

99 ibid. 100 ibid. 101 ibid. 102 '24. Syria (1946-Present)' (Uca.edu, 2019) <https://uca.edu/politicalscience/dadm-project/middle-eastnorth-africapersian-gulf-region/syria-1946-present/> accessed 19 September 2019 103 'A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 19 September 2019 104 ibid 105 Muhamad&nbsp;AbdiHannes&nbsp;Soltau, 'Eine Kurze Zeitreise Durch Die Lange Geschichte Syriens' (DIGITAL PRESENT, 2019) <https://digitalpresent.tagesspiegel.de/eine-kurze-zeitreise-durch-die-lange-geschichte-syriens> accessed 19 September 2019 106 Lange K, 'Syrien: Ein Historischer Überblick | Apuz' (bpb.de, 2019) <https://www.bpb.de/apuz/155119/syrien-ein-historischer-ueberblick?p=all> accessed 19 September 2019 107 ibid. 108 ibid.

popularity of Hafez al-Assad among the Syrian population. The Baath Party, with Assad as 109

its secretary general, was declared “the leading party in society and state” in the constitution

of 1973. Syria also got involved into the civil war in Lebanon, where it has maintained a 110

military presence ever since. 111

The support shown by the Syrian people plummeted when the economic circumstances

deteriorated in the late-1970s. This decrease in popularity was, among others, caused by 112

corruption, abuses by the security forces and the Syrian policy regarding the Lebanese Civil

War, which lasted from 1975 to 1990. Starting in 1979, a series of attacks shook the 113

country and a power struggle between the Islamic opposition and the regime began. A 114

decisive factor motivating the Muslim Brotherhood to commence this uprising was the

Alawite dominance in state and security apparatus. The escalation of this so-called “power 115

play” was observable, when in 1982, the army attacked the city of Hama, a stronghold of the

opposition, and killed more than 20,000 people; members of the SMB fled the country. 116 117

The Syrian Muslim Brotherhood, whose membership was punishable by death since 1980,

was shattered and the oppression and imprisonment of left-wing oppositionists followed. 118

The Hama massacre, which was conducted by pro-regime forces, has long served as a

sustainable and effective deterrent to any uprising plans, which were anticipated because of

the economic downturn, the increasing corruption in the public administration and

109 ibid. 110 ibid. 111 'Syria' (History.com, 2019) <https://www.history.com/topics/middle-east/the-history-of-syria> accessed 21 September 2019 112 Lange K, 'Syrien: Ein Historischer Überblick | Apuz' (bpb.de, 2019) <https://www.bpb.de/apuz/155119/syrien-ein-historischer-ueberblick?p=all> accessed 21 September 2019 113 ibid. 114 'The Role Of The Muslim Brotherhood In The Syrian Civil War | Middle East Policy Council' (Mepc.org, 2019) <https://www.mepc.org/journal/role-muslim-brotherhood-syrian-civil-war> accessed 22 September 2019 115 Lange K, 'Syrien: Ein Historischer Überblick | Apuz' (bpb.de, 2019) <https://www.bpb.de/apuz/155119/syrien-ein-historischer-ueberblick?p=all> accessed 22 September 2019 116 Neumayer I, 'Naher Und Mittlerer Osten: Syrien' (Planet-wissen.de, 2019) <https://www.planet-wissen.de/kultur/naher_und_mittlerer_osten/syrien/index.html> accessed 22 September 2019 117 'The Syrian Muslim Brotherhood' (Rlp.hds.harvard.edu, 2019) <https://rlp.hds.harvard.edu/faq/syrian-muslim-brotherhood> accessed 22 September 2019 118 Lange K, 'Syrien: Ein Historischer Überblick | Apuz' (bpb.de, 2019) <https://www.bpb.de/apuz/155119/syrien-ein-historischer-ueberblick?p=all> accessed 22 September 2019

bureaucracy, the continuous state of emergency and the disregard of civil rights. The 119

inferiority of the Syrian army in the confrontation with Israel in the summer of 1982 further

strengthened the discontent of the Syrian population. Even though some parties and civil 120

rights activists operated illegally, these activities did not pose a serious threat to Hafez

al-Assad’s rule. 121

Image 3: Hafez al-Assad 122

Between 1956 and 1991, the Soviet Union had reportedly supplied Syria with 5000 tanks,

more than 1200 combat aircraft, around 70 warships and weapons worth $26 billion. But 123

this military cooperation, which enabled Syria to receive weapons and military equipment on

credit, seemed to crumble when the Soviet Union under the Gorbachev administration

intended to restore relations with Israel. Nonetheless, decades of Cold War cooperation did 124

119 ibid. 120 ibid. 121 ibid. 122 'Profile: Hafez Al-Assad (12 March 1971 – 10 June 2000)' (Middle East Monitor, 2019) <https://www.middleeastmonitor.com/20150610-memo-profile-hafez-al-assad-12-march-1971-10-june-2000/> accessed 22 September 2019 123 Lund A, 'From Cold War To Civil War: 75 Years Of Russian-Syrian Relations' (Ui.se, 2019) <https://www.ui.se/globalassets/ui.se-eng/publications/ui-publications/2019/ui-paper-no.-7-2019.pdf> accessed 22 September 2019 124 ibid.

not simply dissolve overnight: certain cultural, economic, intelligence, and military

cooperation continued. In search for a political and economic “backup”, Hafez al-Assad 125

has shown willingness to cooperate with Western powers and reoriented his policies to focus

on the United States and Europe. Despite the loss of an important partner, the Soviet 126

Union, Assad gained a new scope with the support of the Allied coalition against Iraq in the

Second Gulf War, which also broadened his capabilities against Lebanon. These 127

circumstances illustrate how distant the Syrian-Russian connection had become. 128

The stability of Hafez al-Assad’s power was perhaps most evident after his death on June 10,

2000, when the presidency was, without remarkable resistance (parliament quickly changed

the mandatory minimum age of the President from 40, so that the 34-year-old Bashar

al-Assad could take charge) , transferred to his son Bashar al-Assad. The death of Hafez 129 130

al-Assad set an end to the 30-years-lasting era that has shaped the course of Syria. Bashar 131

al-Assad ran unopposed for president and earned 97.3% of the vote, making him the

successor of his father. At first, the public was quite positive towards the 132

newly-inaugurated regime, and even called this short-era “Damascus Spring”. In his 133

inaugural speech, Assad affirmed his commitment to economic liberalization and promised to

implement some political reform. The hopeful and optimistic attitude of the Syrians was 134

further intensified when Assad released 600 political prisoners. But this positive trend 135

125 ibid. 126 ibid. 127 Lange K, 'Syrien: Ein Historischer Überblick | Apuz' (bpb.de, 2019) <https://www.bpb.de/apuz/155119/syrien-ein-historischer-ueberblick?p=all> accessed 22 September 2019 128 Lund A, 'From Cold War To Civil War: 75 Years Of Russian-Syrian Relations' (Ui.se, 2019) <https://www.ui.se/globalassets/ui.se-eng/publications/ui-publications/2019/ui-paper-no.-7-2019.pdf> accessed 22 September 20 129 'A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 18 September 2019 130 Lange K, 'Syrien: Ein Historischer Überblick | Apuz' (bpb.de, 2019) <https://www.bpb.de/apuz/155119/syrien-ein-historischer-ueberblick?p=all> accessed 22 September 2019 131 'Hafez Al-Assad' (the Guardian, 2019) <https://www.theguardian.com/theguardian/2000/jun/15/guardianweekly.guardianweekly1> accessed 22 September 2019 132 'A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 18 September 2019 133 ibid. 134 'Bashar Al-Assad | Family, Biography, & Facts' (Encyclopedia Britannica, 2019) <https://www.britannica.com/biography/Bashar-al-Assad> accessed 22 September 2019 135 Whitaker B, 'Syria To Free 600 Political Prisoners' (the Guardian, 2019) <https://www.theguardian.com/world/2000/nov/17/brianwhitaker> accessed 22 September 2019

could not survive for a long time: pro-reform movements were suppressed, leading

intellectuals were arrested, and in 2002, the United States of America officially accused Syria

of acquiring and developing weapons of mass destruction. In 2005, Syria was even accused 136

of being behind the assassination of the Lebanese prime minister Rafik al-Hariri. Although 137

a United Nations report indicated some level of Syrian participation in the assassination of

al-Hairi, the involvement of the Syrian regime could not be conclusively proved. Over the 138

next few years, Internet censorship tightened, and even though the relationship with western

countries and the EU had a positive tendency, an Israel led air strike in northern Syria has

caused a dramatic recession in the relations with Western powers. Bashar al-Assad adopted 139

his father’s hard-line stance in Syria’s conflict with Israel and gave support to Palestinian and

Lebanese militant groups. 140

In the 2007 presidential election, Assad was re-elected by a nearly unanimous majority

(99.82%) to a second term as president. In his second term, Bashar al-Assad took some 141

steps toward ending Syria’s isolation from the international community, aiming to ameliorate

its relations with regional powers, such as Saudi Arabia and Turkey. In 2008, Assad met 142

with his French counterpart and the new Lebanese president Michel Suleiman to establish

foundations for diplomatic interactions between the countries. Syria hosting a summit with 143

the goal of Middle East peace, as well as the arrival of an American special envoy to

negotiate peace talks were perceived as important events indicating the progressive foreign

policy of Syria and the Assad administration. 144

136 'A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 18 September 2019 137 Short R, 'Syria Accused Of Killing Lebanon's Ex-Leader' (Telegraph.co.uk, 2019) <https://www.telegraph.co.uk/news/worldnews/middleeast/lebanon/1483579/Syria-accused-of-killing-Lebanons-ex-leader.html> accessed 22 September 2019 138 'Bashar Al-Assad | Family, Biography, & Facts' (Encyclopedia Britannica, 2019) <https://www.britannica.com/biography/Bashar-al-Assad> accessed 22 September 2019 139 'A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 18 September 2019 140 'Bashar Al-Assad | Family, Biography, & Facts' (Encyclopedia Britannica, 2019) <https://www.britannica.com/biography/Bashar-al-Assad> accessed 22 September 2019 141 ibid. 142 ibid. 143 'Sarkozy Meets Syria's Assad Ahead Of Summit' (U.K., 2019) <https://uk.reuters.com/article/uk-france-syria-lebanon/sarkozy-meets-syrias-assad-ahead-of-summit-idUKL1246476620080712> accessed 22 September 2019 144 'A Brief History Of Syria | The Art Of Simple' (The Art of Simple, 2019) <https://theartofsimple.net/a-brief-history-of-syria/> accessed 18 September 2019

In 2010, the U.S. renewed economic sanctions against Syria accusing it of supporting terrorist

groups, such as Hezbollah and al Qaeda, which resulted in an abrupt end in all this progress.

In his speech, Obama claimed that “[Syria’s] continuing support for terrorist organisations 145

and pursuit of weapons of mass destruction and missile programmes, continue[d] to pose an

unusual and extraordinary threat to the national security, foreign policy, and economy of the

United States”. Many human rights groups reported that the Assad regime regularly 146

tortured, imprisoned and killed political opponents throughout his presidency. 147

In late 2010, revolts in Egypt and Tunisia, which became known as the Arab Spring, broke

out having enormous implications for the region. After 23 years in power, the Tunisian 148

president Zine El Abidine Ben Ali was forced to flee the country, when a self-immolation of

a street vendor in the town of Sidi Bouzid sparked mass anti-government protests. In the 149

following months and years, Ben Ali’s bitter fate inspired similar uprisings across the Middle

East. President Bashar al-Assad was confident that the Arab Spring would not have an 150

impact on Syria. But things evolved differently: in March of 2011, a group of teens and 151

children were arrested and tortured for writing anti-government graffiti that was thought to be

inspired by the Arab Spring rebellion. After the graffiti incident, peaceful protests escalated 152

in Syria and spread all over the country. The Assad administration responded by arresting 153

and killing hundreds of protestors and their family members. These events combined with 154

other circumstances, including a lagging economy, a lack of general freedoms, a severe

145 ibid. 146 'Obama Renews Syria Sanctions' (Aljazeera.com, 2019) <https://www.aljazeera.com/news/middleeast/2010/05/20105455424403270.html> accessed 23 September 2019 147 'Syria' (History.com, 2019) <https://www.history.com/topics/middle-east/the-history-of-syria> accessed 23 September 2019 148 'How Did The Arab Spring Begin?' (ThoughtCo, 2019) <https://www.thoughtco.com/how-the-arab-spring-started-2353633> accessed 23 September 2019 149 ibid. 150 ibid. 151 'The Arab Spring Country By Country' (The National, 2019) <https://www.thenational.ae/world/the-arab-spring-country-by-country-1.401358> accessed 23 September 2019 152 'Syria' (History.com, 2019) <https://www.history.com/topics/middle-east/the-history-of-syria> accessed 23 September 2019 153 Tarabay J, 'For Many Syrians, The Story Of The War Began With Graffiti In Dara'a' (CNN, 2019) <https://edition.cnn.com/2018/03/15/middleeast/daraa-syria-seven-years-on-intl/index.html> accessed 23 September 2019 154 'Syria' (History.com, 2019) <https://www.history.com/topics/middle-east/the-history-of-syria> accessed 26 September 2019

drought and a tense religious atmosphere led to civilian resistance and, finally, an uprising

which has morphed into a nightmare for the Syrian people. 155

b. The Chronology of the Civil War in Syria

Peaceful protests on the streets in the Southern part of the country in 2011 marked the

beginning of the Syrian conflict. People, who were inspired by the developments in Tunisia 156

and Egypt, went out onto the street and demanded for political reforms, the rule of law and

freedoms. On March 18, 2011, 5 demonstrators were killed and hundreds were injured. 157 158

The efforts of the security forces to (violently) end these protests lead to the spreading of

critics and protests into the other parts of the country. The Free Syrian Army, which is a 159

rebel group formed by defectors from the Syrian army, claimed leadership over the armed

opposition fighting in Syria, but their authority was majorly unrecognized by the local

militias. 160

In late 2011 and early 2012, there were several international attempts to bring the conflict to

an end. One of them was the Arab League initiative calling for the Syrian government to 161

stop violence against opposition and protesters, remove tanks and armoured vehicles from the

affected cities, and release political prisoners. Some progress was achieved and in 162

December 2011, the Syrian government agreed to permit a delegation of monitors from the

Arab League to visit Syria to inspect the implementation of the plan. But the observer 163

mission of the Arab League rapidly lost credibility with the opposition as it became clear that

155 ibid, 156 'Der Bürgerkrieg In Syrien – Ein Überblick | Malteser International' (Malteser-international.org, 2019) <https://www.malteser-international.org/de/hilfe-weltweit/naher-osten/syrien/der-buergerkrieg-in-syrien-ein-ueberblick.html> accessed 26 September 2019 157 ibid. 158 Asseburg M, 'Syrien: Ziviler Protest, Aufstand, Bürgerkrieg Und Zukunftsaussichten | Apuz' (bpb.de, 2019) <https://www.bpb.de/apuz/155110/ziviler-protest-aufstand-buergerkrieg-und-zukunftsaussichten?p=all> accessed 26 September 2019 159 'Der Bürgerkrieg In Syrien – Ein Überblick | Malteser International' (Malteser-international.org, 2019) <https://www.malteser-international.org/de/hilfe-weltweit/naher-osten/syrien/der-buergerkrieg-in-syrien-ein-ueberblick.html> accessed 26 September 2019 160 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019 161 ibid. 162 ibid. 163 ibid.

not enough personnel and equipment had been sent and that the Syrian government had

presented the monitors with orchestrated scenes. Human rights groups have voiced 164

scepticism over how much the Arab League mission will be allowed to see, and how its

investigations will be. Furthermore, there has been criticism of the choice of the leader of 165

the mission, Mustafa Dabi, who served as a Sudanese general and former head of military

intelligence under the regime of President Omar al-Bashir (Bashir was accused of genocide,

crimes against humanity and war crimes in Sudan’s Darfur region). These concerns and 166

concerns for the monitor’s safety have led to the ending of the Arab League mission in

January 28, 2012. Another peace attempt was the agreement, which was brokered by 167

former UN Secretary-General Kofi Annan and sponsored by the UN and the Arab League. 168

Although a short partial cease-fire was produced, permanent success could not be 169

achieved. 170

In summer and fall of 2012, a series of tactical successes for the rebels was observed and that,

in turn, forced the government troops to withdraw from areas in the north and east and

allowed rebels to control significant territory for the first time. In July, rebels attacked 171

Aleppo and claimed to control four districts of Syria’s second city. While government 172

forces were weakened by defections , daily fighting continued in contested areas of the city,

pushing the civilian death toll higher. 173

164 ibid. 165 Borger J, 'Arab League Monitors Visit Homs' (the Guardian, 2019) <https://www.theguardian.com/world/2011/dec/27/arab-league-monitors-syria-homs> accessed 28 September 2019 166 ibid. 167 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019 168 Weaver M, 'Syria: UN Security Council Agree To Back Kofi Annan's Plan - Wednesday 21 March 2012' (the Guardian, 2019) <https://www.theguardian.com/world/middle-east-live/2012/mar/21/syria-crisis-live-coverage> accessed 28 September 2019 169 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019 170 ibid. 171 ibid. 172 Weaver MB Whitaker, 'Syria Crisis: Clashes And Prison Mutiny In Aleppo - Tuesday 24 July 2012' (the Guardian, 2019) <https://www.theguardian.com/world/middle-east-live/2012/jul/24/syria-crisis-aleppo-clashes-live> accessed 28 September 2019 173 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019

International allies of the Syrian government and the rebels stepped up their support, as no

decisive outcome was in sight. Some Middle Eastern countries started to more intensely 174

fund and arm rebel groups on the battleground. An Arab diplomat, who spoke to Reuters, 175

stated that “Saudi Arabia and Qatar [was] paying salaries to rebel forces fighting in the

Syrian revolt against President Bashar al-Assad”. The United States was, until a certain 176

point, reluctant to send weapons minding that these weapons could have been used by radical

jihadist against the West. But this approach has changed and the United States has become 177

part of the proxy warfare and has eventually started a modest program to train and equip rebel

groups. The Syrian government, on the other hand, received equipment and weapons from 178

Iran and the Lebanese militant group Hezbollah, who by late 2012 also began to send own

fighters into Syria to support the regime forces in their fight against the rebel groups. 179

On the morning of August 21, 2013, a chemical attack, in which the nerve agent sarin was

involved, was conducted on the Ghouta agricultural belt around Damascus. In some of the 180

most graphic footage, which were uploaded within hours, dozens of bodies, including those

of children and babies, were seen laid out in rows on the streets and floors of clinics and

mosques. While it has been difficult to determine a precise death toll from the attack due to 181

the chaos resulting from the large number of casualties and the lack of infrastructure, the

main opposition alliance put the death toll at more than 1,300. Even though Syrian officials 182

denied the usage of chemical weapons, the U.S., Great Britain, and France denounced the use

of chemical weapons and emphasized the need of retaliatory strikes against the Assad regime.

But this plan has not become reality, since majorities in the U.S. and the United Kingdom 183

were opposed to military action. On August 29, 2013, MPs in the British parliament 184

174 ibid. 175 ibid. 176 'Saudi Arabia And Qatar Funding Syrian Rebels' (U.S., 2019) <https://www.reuters.com/article/us-syria-crisis-saudi/saudi-arabia-and-qatar-funding-syrian-rebels-idUSBRE85M07820120623> accessed 29 September 2019 177 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019 178 ibid. 179 ibid. 180 'Syria Chemical Attack: What We Know' (BBC News, 2019) <https://www.bbc.com/news/world-middle-east-23927399> accessed 29 September 2019 181 ibid. 182 ibid. 183 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019 184 ibid.

rejected possible UK military action against Assad’s government. Similarly, the U.S. 185

Congress did not approve a strike, with 243 Congressional members voting “No”. On the 186

contrary, Russia, China, and Iran immediately spoke out against a military action. 187

Image 4: Injured children receive treatment in a field hospital after airstrikes 188

Efforts for a diplomatic solution resulted in an agreement between Russia, Syria, and the

United States to make all of Syria’s chemical weapons subject to international control. This 189

agreement was carried out and all declared chemical weapons were removed from Syria by

the agreement’s deadline of June 30, 2014. 190

185 'Mps' Vote Halts UK Action Over Syria' (BBC News, 2019) <https://www.bbc.com/news/uk-politics-23892783#> accessed 29 September 2019 186 Murdock S, 'Huffpost Is Now A Part Of Oath' (Huffpost.com, 2019) <https://www.huffpost.com/entry/republicans-strike-syria-trump_n_58e6f71de4b051b9a9da355d> accessed 29 September 2019 187 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019 188 'U.S. Blames Syria In Deadly Chemical Attack On Civilians' (UPI, 2019) <https://www.upi.com/Top_News/World-News/2017/04/04/US-blames-Syria-in-deadly-chemical-attack-on-civilians/9981491306007/> accessed 29 September 2019 189 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019 190 ibid.

Another problem, which threatened the security within the region, was the strengthening of

Islamist militants. The Nusrah Front, an al-Qaeda affiliate operating in Syria, cooperated 191

with a variety of different groups and was considered as one of the most effective fighting

forces. Another group, which was formed by the leader of al-Qaeda in Iraq in April 2013, 192

overshadowed the Nusrah Front. Abu Bakr al-Baghdadi, the aforementioned leader of the 193

new group, declared that he would combine his forces in Iraq and Syria under the name of

“Islamic State in Iraq and Levant”. 194

Image 5: ISIL militants entering a newly captured city 195

ISIL seized an area in the Euphrates valley centered on the city of Al-Raqqah, from where it

launched a series of operations in both Iraq and Syria. The sudden advances of ISIL within 196

the region was accompanied by a stream of provocative and violent propaganda, which

191 Beaumont P, 'Growing Strength Of Syria's Islamist Groups Undermines Hopes Of Ousting Assad' (the Guardian, 2019) <https://www.theguardian.com/world/2013/dec/14/syria-islamist-militants-growing-strength> accessed 29 September 2019 192 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019 193 ibid. 194 ibid. 195 'ISIL Kills Dozens Of Opponents In Iraq' (Aljazeera.com, 2019) <https://www.aljazeera.com/news/2015/04/isil-kills-dozens-opponents-iraq-150421044405058.html> accessed 6 October 2019 196 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019

forced the international community to take certain actions. In this context, the United States 197

began airstrikes against ISIS targets in Iraq on August 8,2014 in order to prevent a possible

genocide of the Yazidi, as well as the advancing of ISIL militants. Even though these 198

airstrikes were able slow the group’s advance, they were not able to completely abolish the

activities threatening both locals and internationals. Videos showing the beheadings of two 199

journalists, namely James Foley and Steven Sotloff, appeared on the internet and amplified 200

fears that this group posed a global threat. Another airstrike on September 23, 2014, which 201

was realized as a cooperative mission between the U.S. and a coalition of Arab states

(including Bahrain, Jordan, Saudi Arabia, the United Arab Emirates, and Qatar), followed. 202

In the summer of 2015, Russia began to take a more active role in the Syrian conflict by

deploying troops and equipment to an air base near Latakia. In September of that year, 203

Russia launched its first airstrikes against certain targets situated within the Syrian borders. 204

While Russian officials claimed that the airstrikes were aiming at ISIL instances, it became

clear that they were targeting mostly rebels fighting against Assad. 205

A cease-fire was negotiated by Russia and the United States in order to allow for the

much-needed humanitarian access to besieged cities.. But the Russian-U.S. sponsored 206

cease-fire collapsed after a deadly attack on a convoy carrying humanitarian supplies. That, 207

197 ibid. 198 Roberts DS Ackerman, 'US Begins Air Strikes Against Isis Targets In Iraq, Pentagon Says' (the Guardian, 2019) <https://www.theguardian.com/world/2014/aug/08/us-begins-air-strikes-iraq-isis> accessed 29 September 2019 199 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019 200 'Islamischer Staat: Video Soll Wieder Enthauptung Zeigen' (FAZ.NET, 2019) <https://www.faz.net/aktuell/politik/ausland/naher-osten/islamischer-staat-video-soll-wieder-enthauptung-zeigen-13132813.html> accessed 29 September 2019 201 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 28 September 2019 202 Chulov M, S AckermanP Lewis, 'US Launches Air Strikes Against Isis Targets In Syria' (the Guardian, 2019) <https://www.theguardian.com/world/2014/sep/23/us-launches-air-strikes-against-isis-targets-in-syria> accessed 29 September 2019 203 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 3 October 2019 204 ibid. 205 ibid. 206 Said-Moorhouse L, 'Syria Ceasefire: What You Need To Know' (CNN, 2019) <https://edition.cnn.com/2016/09/12/middleeast/syria-ceasefire-explained/index.html> accessed 3 October 2019 207 'U.N. Suspends Aid After Convoy Attack As Syria Ceasefire Collapses - Antigua Observer Newspaper' (Antigua Observer Newspaper, 2019)

in turn, had dramatic consequences for both the region and its inhabitants: Russia and Syrian

forces turned their focus to the rebel-held eastern part of Aleppo, inducing an intense

bombing campaign. In this bombing campaign, Russian and Syrian forces did not attempt 208

to avoid causing civilian casualties in their efforts to restrain the rebel groups. Warplanes 209

dropping indiscriminate munitions such as cluster bombs and incendiary bombs, medical

facilities, search and rescue teams subjected to bombings (by the end of 2016, the last

hospital in rebel-held East Aleppo was destroyed by airstrikes, leaving an estimated 250,000

residents without access to surgery or specialist care) have become bitter reality in Syria. 210 211

All these incidents continued until the rebels in Aleppo collapsed in December. 212

ISIL, which was considered as a decisive threat in the eastern and northern part of Syria, was

weakened as a result of simultaneous confrontations with three rival groups, namely the

Kurdish forces and their American allies, pro-Assad Syrian and a coalition of rebel groups. 213

ISIL was forced to defend numerous attacks coming from different interest groups. ISIL’s 214

rivals on the ideological sphere (e.g. the Nusrah Front) merged into “Hayat Tahrir al-Sham”

and together successfully combated ISIL in Idlib liberating an important territory held by

ISIL. In June 2017, the U.S.-backed alliance of Kurdish and Arab fighters has launched an 215

offensive to capture Raqqa, which was classified as ISIL’s de facto capital in Syria. In 216

October, the Kurdish Syrian Democratic Forces (categorized as a terrorist group by Turkey,

<https://www.antiguaobserver.com/u-n-suspends-aid-after-convoy-attack-as-syria-ceasefire-collapses/> accessed 3 October 2019 208 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 3 October 2019 209 ibid. 210 Li G, 'Hospital Bombings Destroy Syria’S Health System' (Health and Human Rights Journal, 2019) <https://www.hhrjournal.org/2017/05/hospital-bombings-destroy-syrias-health-system/> accessed 3 October 2019 211 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 3 October 2019 212 ibid. 213 ibid. 214 'Who's Who In The Fight Against ISIS?' (FRONTLINE, 2019) <https://www.pbs.org/wgbh/frontline/article/whos-who-in-the-fight-against-isis/> accessed 4 October 2019 215 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 4 October 2019 216 'Kurdish-Led Forces Launch Raqqa Offensive' (BBC News, 2019) <https://www.bbc.com/news/world-middle-east-40171406> accessed 4 October 2019

another important actor involved in this conflict) announced that full control had been 217

taken over Raqqa, ending three years of rule in the city by ISIL. In the east, the army of 218

Syria declared that it had taken control over Deir al-Zour, and thus made ISIL instances flee

from the region. 219

The beginning of 2017 was predominated by the territorial expansion of parts where the

Syrian army regained control. These developments have caused some worries among 220

Western powers and they commenced to gradually intervene in the so-called Syrian conflict.

On April 4, 2017, more than 80 people lost their lives in a suspected chemical attack 221

hitting the rebel-held city of Khan Sheikhoun situated in the northwestern part of the country.

While Bashar al-Assad claimed that this incident was scripted, his ally Russia indicated 222

that a rebel depot filled with chemical munitions were targeted. As a reaction, the United 223

States bombed Shayrat air base with 59 Tomahawk cruise missiles and Pentagon spokesman

Jeff Davis justified this maneuver by explaining that “aircraft from [Shayrat airbase] had

dropped bombs filled with a nerve agent on Khan Sheikhoun”. The repeatedly use of 224

chemical weapons in Douma by the Syrian government urged Western countries to cooperate

and so, the U.S., Great Britain and France launched over 100 airstrikes targeting chemical

weapons facilities in Damascus and Homs. 225

Until early 2018, the Syrian regime was able to consolidate its presence in the areas around

Damascus and Homs. With their stable situation in the aforementioned area, the Syrian 226

government forces started a campaign to reclaim rebel-held territories. While in the 227

217 'Turkey: Terrorist YPG/PKK Can't Seek Legitimacy At UN' (Aa.com.tr, 2019) <https://www.aa.com.tr/en/world/turkey-terrorist-ypg-pkk-cant-seek-legitimacy-at-un/1548394> accessed 4 October 2019 218 'IS Defeated In 'Capital' Raqqa' (BBC News, 2019) <https://www.bbc.com/news/world-middle-east-41646802> accessed 4 October 2019 219 'Big Losses For IS In Syria And Iraq' (BBC News, 2019) <https://www.bbc.com/news/world-middle-east-41856330> accessed 5 October 2019 220 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 5 October 2019 221 ibid. 222 'Syria Chemical 'Attack': What We Know' (BBC News, 2019) <https://www.bbc.com/news/world-middle-east-39500947> accessed 5 October 2019 223 ibid. 224 'Why Was Syria's Shayrat Airbase Bombed?' (BBC News, 2019) <https://www.bbc.com/news/world-us-canada-39531045> accessed 5 October 2019 225 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 6 October 2019 226 ibid. 227 ibid.

beginning, these forces were aiming to recapture the southwestern province of Daraa, the

campaign later expanded into Al-Qunaytirah province. With the success, that the Assad 228

regime had achieved in this important region, a deal was closed with the involvement of

Russia allowing rebels to safely relocate to the rebel-held province of Idlib in exchange for

their surrender in the southwest of Syria. 229

Image 6: Syrian army units and allied forces deploying at an undisclosed location (this photo

was released by the official Syrian Arab News Agency) 230

With its nature as the last rebel-held city, the control over Idlib has become extremely

important for all parties involved in Syrian conflict. It was described as a microcosm of the 231

war, as all players had taken a stake. The Syrian government’s ability to mainly focus on 232

that specific region have led to worries among the inhabitants of Idlib , most of whom fled 233

228 ibid. 229 ibid. 230 'Presstv-Syrian Army Retakes More Towns In Idlib Province' (Presstv.com, 2019) <https://www.presstv.com/Detail/2019/08/30/604843/Syria-offensive-retake-idlib-militants> accessed 6 October 2019 231 Chulov M, 'Civilians In Syria's Last Rebel Stronghold Brace For Final Battle' (the Guardian, 2019) <https://www.theguardian.com/world/2018/sep/01/civilians-in-syrias-last-rebel-stronghold-brace-for-final-battle> accessed 6 October 2019 232 ibid. 233 ibid.

to this area coming from different parts of the country. The strategic maneuver of Turkey 234

showing military presence in the region to support rebels prevented Assad forces to easily

enter and seize Idlib. This turned into a continuous amassing of troops along the borders. 235 236

Turkey has reinforced its military instances within Idlib, whereas Syrian and Russian

warplanes bombarded neighboring cities. 237

On September 17, 2018, Turkey and Russia agreed on a plan arranging the creation of a

demilitarized zone. According to the plan, all fighters and heavy weapons, such as tanks 238

and artillery would be withdrawn from the respective zone by 10 October. It was unclear 239

whether all parties would stick to the clauses of the deal, which was a top-down agreement. 240

While the Syrian government and leading rebel groups (e.g. Free Syrian Army) embraced the

idea of a buffer-zone in Idlib, the attitude of groups related to al-Qaeda’s ideology was

unknown at first. They, indeed, pulled heavy weapons from the zone, but many of their 241

fighters remained in the projected buffer zone after the deadline of October 15. In April 242

2019, forces fighting for the Assad regime crossed the borders of the buffer zone and

introduced and offensive in Idlib supported up by Russian air strikes. But a 243

counteroffensive, which was launched in June, could push the battles back into neighboring

areas. 244

234 Wintour P, 'Russia And Turkey To Set Up Idlib Buffer Zone To Protect Civilians' (the Guardian, 2019) <https://www.theguardian.com/world/2018/sep/17/russia-and-turkey-to-set-up-idlib-buffer-zone-to-protect-civilians> accessed 6 October 2019 235 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 6 October 2019 236 ibid. 237 ibid. 238 Wintour P, 'Russia And Turkey To Set Up Idlib Buffer Zone To Protect Civilians' (the Guardian, 2019) <https://www.theguardian.com/world/2018/sep/17/russia-and-turkey-to-set-up-idlib-buffer-zone-to-protect-civilians> accessed 6 October 2019 239 ibid. 240 'Syrian Civil War - Civil War' (Encyclopedia Britannica, 2019) <https://www.britannica.com/event/Syrian-Civil-War/Civil-war> accessed 6 October 2019 241 ibid. 242 ibid. 243 ibid. 244 ibid.

As it becomes visible, the Syrian civil war is a multidimensional conflict, in which numerous

parties are involved. Hitherto, stability could not be achieved. Time will show, if and when

the long-awaited peace will become reality in Syria.

c. The Implications of the Syrian Civil War on the Socio-Economic Situation in the

Country

A World Bank report estimates that the Syrian conflict destroyed approximately one third of

the housing stock and about half of medical and educational facilities. This infrastructural 245

collapse has caused an immense economic loss, which will, among others, make recovery and

reconstruction even harder for the Syrian people. Unfortunately, it is not only 246

infrastructural decay, which is being experienced by the inhabitants of Syria. Hafez 247

Ghanem, the World Bank Vice President for the Middle East and North Africa, remarked that

“the war is [...] destroying the institutions and systems that societies need to function, and

[that] repairing them will be a greater challenge than rebuilding infrastructure”. This 248

challenge is becoming tougher and tougher, since the socioeconomic implications of this

crisis are becoming more persistent with each passing day. 249

In order to comprehend the magnitude of the socioeconomic dimension of the civil war, it is

important to separately examine the problems in Syria. Bearing this prerequisite in mind, the

following pages will deal with issues affecting the daily lives of millions of Syrians.

245 'The Visible Impacts Of The Syrian War May Only Be The Tip Of The Iceberg' (World Bank, 2019) <https://www.worldbank.org/en/news/press-release/2017/07/18/the-visible-impacts-of-the-syrian-war-may-only-be-the-tip-of-the-iceberg> accessed 6 October 2019 246 ibid. 247 ibid. 248 'Syria: When And How Does This War End?' (Csis.org, 2019) <https://www.csis.org/analysis/syria-when-and-how-does-war-end> accessed 6 October 2019 249 'The Visible Impacts Of The Syrian War May Only Be The Tip Of The Iceberg' (World Bank, 2019) <https://www.worldbank.org/en/news/press-release/2017/07/18/the-visible-impacts-of-the-syrian-war-may-only-be-the-tip-of-the-iceberg> accessed 6 October 2019

1. Civilian casualties

The casualties of the Syrian Civil War have grown from the first handful of protesters shot by

security forces to hundreds of thousands of dead. The increase of civilian casualties have 250

grown in such a drastic way, that many international monitoring groups and authorities have

stopped counting. The lack of information on death tolls is also caused by the difficulties 251

that these data providers have in verifying the number of civilian casualties. The last data 252

on this important issue was published in 2016 by the UN special envoy for Syria estimating

that 400,000 people had been killed throughout the five years of civil war (2011-2016). 253

Bearing in mind that numerous bloody combats have taken place since 2016, the death toll

has most probably risen dramatically. The airstrikes conducted by the Assad regime to the 254

country’s second largest city of Aleppo and other densely-populated areas support the

unfortunate expectation hinting at an increase in civilian casualties. International experts 255

working in the region use a general figure of over 500,000 deaths and add that the changing

circumstances make it nearly impossible to clearly know. If this estimate (taking both 256

civilians and combatants into account) is deemed as reliable, around 2.33 percent of Syria’s

prewar population of 22 million died. 257

The statement put forward by Mr. Moumtzis working for the United Nations, criticizing that

“speaking about the numbers has almost become mechanical [even though] behind it are

lives”, clarifies the ignorant approach towards the tragedy experienced by the people of Syria.

258

250 'How Syria’S Death Toll Is Lost In The Fog Of War' (Nytimes.com, 2019) <https://www.nytimes.com/2018/04/13/world/middleeast/syria-death-toll.html> accessed 7 October 2019 251 ibid. 252 ibid. 253 'Syria Death Toll: UN Envoy Estimates 400,000 Killed' (Aljazeera.com, 2019) <https://www.aljazeera.com/news/2016/04/staffan-de-mistura-400000-killed-syria-civil-war-160423055735629.html> accessed 7 October 2019 254 'How Syria’S Death Toll Is Lost In The Fog Of War' (Nytimes.com, 2019) <https://www.nytimes.com/2018/04/13/world/middleeast/syria-death-toll.html> accessed 7 October 255 ibid. 256 ibid. 257 ibid. 258 ibid.

2. Unemployment and poverty

The Syrian Civil War has forced 80% of its population into poverty and led to massive

economic losses estimated at over $200 billion since the conflict began in 2010. In a report, 259

the Syrian Centre for Policy Research emphasized the critical situation and described the

trend as a “systematic collapse and destruction” of the Syrian economy indicating that

infrastructure, wealth, institutions and the majority of its workforce has been wiped out since

2010. 260

Disruption in economic organization is regarded as an important force when it comes to the

socio-economic decay in Syria. And the longer the conflict continues, the more difficult it 261

will get to recover from the disorganized economic system, and thus from problems resulting

from it. 262

The economy of Syria has declined more than 70% since the outbreak of the Syrian Civil

War, and with 43.2% ( recorded in 2017) it has one of the highest inflation rates in the world.

Some claim that the real inflation rate is even higher than what is offered by official 263

figures. While over half the population is unemployed, 82.5 percent have to live under 264

difficult circumstances referred to as “living below the poverty line”. 265

This problem will keep its topicality and as the prominent Austrian economist Prof. Fritz

Machlup suggests, “war consumption and inflation [will] eat up the economy’s physical

259 'Syria's War: 80% In Poverty, Life Expectancy Cut By 20 Years, $200Bn Lost' (the Guardian, 2019) <https://www.theguardian.com/world/2015/mar/12/syrias-war-80-in-poverty-life-expectancy-cut-by-20-years-200bn-lost> accessed 13 October 2019 260 ibid. 261 'Syria Overview' (World Bank, 2019) <https://www.worldbank.org/en/country/syria/overview> accessed 13 October 2019 262 ibid. 263 'Poverty In Syria | The Borgen Project' (The Borgen Project, 2019) <https://borgenproject.org/tag/poverty-in-syria/> accessed 13 October 2019 264 'Syria’S Other Problem: Inflation' (Cato Institute, 2019) <https://www.cato.org/publications/commentary/syrias-other-problem-inflation> accessed 13 October 2019 265 'Poverty In Syria | The Borgen Project' (The Borgen Project, 2019) <https://borgenproject.org/tag/poverty-in-syria/> accessed 13 October 2019

capital [and] without capital, peoples of war-torn lands face a bleak future”. 266

Unfortunately, there is no evidence supporting the invalidity of this statement for the future

of the Syrian people. 267

3. Displacement

Approximately 6.2 million Syrians, including 2.5 million children, are Internally Displaced

Persons, most of whom had to go through this difficult process for a second or third time 268

Unlike refugees, these people have left their homes or places of habitual residence due to

certain events, such as armed conflict, generalized violence, or human rights violations,

without crossing an internationally recognized State border. Respectively, IDP are legally 269

subject to the protection of their own government and unlike refugees, these people do not

have a special status within the mechanisms of international law and the term is solely

descriptive. 270

The legal basis of the differentiation between IDP and refugees is the 1951 Convention on the

Status of Refugees, which indicates that a refugee is a person who “owing to well-founded

fear of being persecuted for reasons of race, religion, nationality, membership of a particular

social group or political opinion, is outside the country of his nationality and is unable, or

owing to such fear, is unwilling to avail himself of the protection of that country; or who, not

having a nationality and being outside the country of his former habitual residence as a

result of such events, is unable or, owing to such fear, is unwilling to return to it" (Article

1(A)(2)). 271

266 'Syria’S Other Problem: Inflation' (Cato Institute, 2019) <https://www.cato.org/publications/commentary/syrias-other-problem-inflation> accessed 16 October 2019 267 ibid. 268 'Internally Displaced People - UNHCR Syria' (UNHCR, 2019) <https://www.unhcr.org/sy/internally-displaced-people> accessed 16 October 2019 269 'Internal Displacement | IDMC' (Internal-displacement.org, 2019) <http://www.internal-displacement.org/internal-displacement> accessed 16 October 2019 270 'Internal Displacement | IDMC' (Internal-displacement.org, 2019) <http://www.internal-displacement.org/internal-displacement> accessed 16 October 2019 271 'Convention And Protocol Relating To The Status Of Refugees' (Unhcr.org, 2019) <https://www.unhcr.org/4ae57b489.pdf> accessed 16 October 2019

Despite the terminological differences of these two groups, the problems they face on a daily

basis do not differ significantly. The displaced Syrians are surviving in precarious 272

conditions: lack of water, food, and electricity have become bitter reality and the fear of

harsh winters constitute pressure on them. Infant mortality has become an urgent problem, 273

since the lack of medical care and inadequate living conditions have hardened the survival of

newborn babies. For children, who have been taken away from their homes, schools, 274

friends and families, and have been forced to start new lives in strange environments, the

situation is even harder to endure. Helping them to recover from the trauma of war is of 275

major importance, but this need cannot be efficiently met. 276

4. Lack of infrastructure

The prolonged Syrian crisis has resulted in the destruction of infrastructure systems including

provision of water, electricity and sanitation. Moreover, social infrastructures, such as 277

schools and hospitals have been damaged or destroyed and thus, basic social services cannot

be provided resulting in increasingly vulnerable living conditions experienced by civilians. 278

A report published by the World Bank exemplifies the dimension of destruction: as of early

2017, about a third of the housing stock and about half of medical and education facilities had

been destroyed or damaged as a direct result of the Syrian civil war. 279

Another important component of this problem is the impaired waste management system

which continues to be one of the most affected services reliant on infrastructure. Equipment 280

and machinery, which was used for these purposes, have been destroyed or do not function as

272 'Refugees And Displaced People In Syria' (International Committee of the Red Cross, 2019) <https://www.icrc.org/en/where-we-work/middle-east/syria/syrian-refugees> accessed 16 October 2019 273 ibid. 274 'Displaced Syrian Infants Dying From Lack Of Healthcare, UN Says | Syria | The Guardian' (Theguardian.com, 2019) <https://www.theguardian.com/world/2019/jan/15/freezing-weather-kills-displaced-children-syria> accessed 17 October 2019 275 'Syrian Refugee Children Stories : Life As A Refugee' (Save the Children, 2019) <https://www.savethechildren.org/us/what-we-do/emergency-response/refugee-children-crisis/refugee-stories> accessed 16 October 2019 276 ibid. 277 'Infrastructure In Syria | The Borgen Project' (The Borgen Project, 2019) <https://borgenproject.org/tag/infrastructure-in-syria/> accessed 16 October 2019 278 ibid. 279 ibid. 280 ibid.

the result of lacking maintenance and parts. The malfunction in waste management has lead 281

to stocking waste piles in the streets of Syria which offer favourable conditions for rodents

and insects, polluting the environment and increasing the risk of diseases. 282

The security situation in Syria has dramatically affected the access to healthcare. Members 283

of the impacted societies remark that shortages of medicine, equipment and experienced

doctors have led to the deterioration of public health. As the toll of the civil war grows, the 284

country’s infrastructure and medical services along with all their elements keep worsening. 285

Besides the decrease in continuity and quality in healthcare services, a high risk of

contracting diseases are given rise to by food scarcity, water-borne diseases, lack of access to

drinkable water, injuries as a result of events related to the war, as well as the toxicity

associated with (biomedical) waste. 286

Image 6: A Syrian city which has become subject to destruction 287

281 ibid. 282 ibid. 283 'PROTECTING HEALTHCARE IN SYRIA' (Assets.publishing.service.gov.uk, 2019) <https://assets.publishing.service.gov.uk/media/5ba11d8ae5274a55a85179cd/Research_Report_-_Protection_of_Syrian_Health_Workers__August_2018.pdf> accessed 17 October 2019 284 ibid. 285 ibid. 286 ibid. 287 'U.S. Airstrikes Hit ISIS Targets Inside Syria - CNN' (CNN, 2019) <https://edition.cnn.com/2014/09/22/world/meast/u-s-airstrikes-isis-syria/index.html> accessed 18 October 2019

5. Insufficient education

Undoubtedly, education is a fundamental human right for all children and youth, and is

therefore attested in Article 2 of Protocol No.1 to the European Convention on Human

Rights, which suggests that “No person shall be denied the right of education”. Education 288

helps children and young people to acquire knowledge, skills and perspectives which are

prerequisites for the fruition of a (more) prosperous future. 289

The Syrian crisis has had a destructive impact on both the education opportunities available

and the quality of these opportunities and unfortunately, a generation of children and youth

has been left disconnected, unprotected and unable to access their well-deserved right to

education. %40 of school buildings have been destroyed, damaged, or used for temporary 290

shelters leaving around 2.08 million children and youth out of school. Illiteracy has become 291

an urgent problem threatening social mobility, which must be tackled in order to prevent lost

generations in the Syrian society. 292

d. Socioeconomic and Humanitarian Situation in Aleppo

The city of Aleppo used to be Syria’s largest city with about 2.3 million inhabitants. 293

Furthermore, it was an economically important Syrian municipality, since it was the main

place for industry and finance. However, by July 2012, the combats have reached Aleppo 294

and the city became one of the main battlegrounds for the civil war, dividing the city in half

(while rebels mainly controlled the eastern half of the city, the government soldiers had

control of the west). This division existed for about 4 years and was disrupted when, 295

towards the end of 2016, government forces launched attacks against rebellion groups to gain

total control over the city Aleppo. On December 22, 2016, the Syrian army announced that 296

288 'Protocol No. 1 To The Convention' (2019) <https://www.coe.int/en/web/echr-toolkit/protocole-1> accessed 17 October 2019 289 Kolstad K, 'Accessing Education In The Midst Of The Syria Crisis | NRC' (NRC, 2019) <https://www.nrc.no/news/2018/april/accessing-education-in-the-midst-of-the-syria-crisis/> accessed 17 October 2019 290 ibid. 291 ibid. 292 ibid. 293 'Syria Conflict: What's Been Happening In Aleppo? - CBBC Newsround' (Bbc.co.uk, 2019) <https://www.bbc.co.uk/newsround/38303230> accessed 18 October 2019 294 ibid. 295 ibid. 296 ibid.

Aleppo had been completely taken back from the rebels. After Aleppo was taken by the 297

government, people who were living in the last areas held by the rebellion groups started to

be evacuated from the city. But the evacuation was interrupted, as the Syrian government 298

insisted that the rebels were not following the procedural plan they had agreed on about how

the evacuation should take place. This divergence has resulted in attacks and more fighting, 299

which had a devastating impact on the lives of many ordinary people in the city: food, water

and fuel became scarce and buildings, including hospitals and schools, were bombed and

damaged, forcing dozens of civilians to flee from their homes to escape the fighting. 300

Although it had been claimed that civilians were not targeted, numerous civilians have lost

their lives during the battles in Aleppo. In a question for written answer, Marlene Mizzi, a 301

member of the European Parliament, stated that “ that the practices [were] an unacceptable

breach of international humanitarian law: what [was] happening could be classed as war

crimes and crimes against humanity [and that] civilians [were] deliberately being targeted,

as well as humanitarian workers and hospitals”. She added that “children in Aleppo made 302

up a large proportion of the casualties from the air strikes”. 303

Since then, no significant fights have taken place on the streets of Aleppo, but living

standards are still low and daily life is predominated by several problems. The city, which 304

had been completely destroyed during the destructive fights, still lies in ruins and there is no

electricity available because of lacking infrastructure. The same goes for the working 305

opportunities in Aleppo, which are in short supply, and consequently, inhabitants have huge

problems in finding sources of income. 306

297 'Aleppo 'Back Under Government Control' (BBC News, 2019) <https://www.bbc.com/news/world-middle-east-38408548> accessed 18 October 2019 298 'Syria Conflict: What's Been Happening In Aleppo? - CBBC Newsround' (Bbc.co.uk, 2019) <https://www.bbc.co.uk/newsround/38303230> accessed 19 October 2019 299 ibid. 300 ibid. 301 ibid. 302 'Situation In Aleppo' (Europarl.europa.eu, 2019) <http://www.europarl.europa.eu/doceo/document//E-8-2016-008226_EN.html> accessed 19 October 2019 303 ibid. 304 'Logo!: Situation In Aleppo' (Zdf.de, 2019) <https://www.zdf.de/kinder/logo/situation-in-aleppo-in-syrien-100.html> accessed 19 October 2019 305 ibid. 306 ibid.

Nonetheless, a lot of Syrian refugees and IDP returned to Aleppo and hope to recreate the

pre-war conditions in their hometown . According to some Syrians, lacking (financial) 307

support from the Syrian government prevents rapid recovery and slows down reconstruction.

But government sources claim that projects to rebuild and rehabilitate the infrastructure of 308

Aleppo have been introduced over the last few years, which include drinking water networks,

sewage systems, buildings for public schools, clinics and health centers, bakeries, irrigation

systems, and road light poles. Additionally, special centers were assigned by the special 309

ministerial committee to organise and support the process of recovery and reconstruction. 310

Many children are obliged to support their parents either in reconstruction work, or in

running their shops and businesses. As a consequence, the majority of children and 311

teenagers lack the necessary time for education, which would be an important component of

normalisation and a sustainable solution against illiteracy. Besides lacking time, education 312

facilities had been subject to destruction in the fight between the rebels and the Assad regime,

and therefore proper education seems to be impossible under the existing circumstances. 313

e. Waves of migration to Europe

In 2016, an estimated 362,000 refugees and migrants have risked their lives crossing the

Mediterranean Sea, with 181,400 people arriving in Italy and 173,450 in Greece. In the first 314

half of 2017 alone, the number of refugees and migrants entering Europe accounted for

approximately 105,000 people indicating a trend of rise in arriving refugees and migrants. 315

307 'Reconstruction Is In Full Swing In War-Ravaged Aleppo' (NBC News, 2019) <https://www.nbcnews.com/news/world/syrians-returning-aleppo-confront-hope-hardship-n905231> accessed 19 October 2019 308 'Logo!: Situation In Aleppo' (Zdf.de, 2019) <https://www.zdf.de/kinder/logo/situation-in-aleppo-in-syrien-100.html> accessed 19 October 2019 309 'Aleppo Rebuilding Its Infrastructure, 1216 Projects Since Eliminating Terror - Global Research' (Global Research, 2019) <https://www.globalresearch.ca/aleppo-rebuilding-its-infrastructure-1216-projects-since-eliminating-terror/5684562> accessed 19 October 2019 310 ibid. 311 'Logo!: Situation In Aleppo' (Zdf.de, 2019) <https://www.zdf.de/kinder/logo/situation-in-aleppo-in-syrien-100.html> accessed 19 October 2019 312 ibid. 313 ibid. 314 'Europe Situation' (UNHCR, 2019) <https://www.unhcr.org/europe-emergency.html> accessed 19 October 2019 315 ibid.

Unfortunately, it is believed that 2,700 people have lost their lives or gone missing while

crossing the Mediterranean Sea in order to reach the European mainland. 316

Even though there are efforts to increase the number of safe pathways to Europe, these

opportunities are way too few to offer a preferable alternative to risky irregular routes for

people in need of protection. The access to existing legal pathways, such as asylum and 317

family reunification, must be increased in order to reduce the consequences of illegal

migration. In 2018, the number of asylum applications accounted for about 600,000, while 318

Germany, France, Sweden, Italy, and Greece were the main countries of destination. With 319

approximately 39,000 asylum applications, Belgium has no place in the upper part of that list.

Syrian, with 910,000 asylum applications between 2014 and 2017, is the leading country 320

when it comes to the number of asylum seekers in Europe. 321

Image 7: A refugee boat in the Mediterranean Sea 322

316 ibid. 317 ibid. 318 ibid. 319 'Asylum Statistics - Statistics Explained' (Ec.europa.eu, 2019) <https://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics#Number_of_asylum_applicants:_drop_in_2018> accessed 19 October 2019 320 van Peteghem V, Migration Policy In Belgium (CDV 2019) <https://www.eeklo.be/dsresource?type=pdf&objectid=default:37654&versionid=&subobjectname=> accessed 19 October 2019 321 'Migration To Europe In Charts' (BBC News, 2019) <https://www.bbc.com/news/world-europe-44660699> accessed 19 October 2019 322 'On Island Of Lesbos, A Microcosm Of Greece’S Other Crisis: Migrants' (Nytimes.com, 2019) <https://www.nytimes.com/2015/08/05/world/europe/lesbos-greece-migrant-refugee-crisis.html> accessed 20 October 2019

f. Migration, Asylum and Integration in Belgium

1. Immigration policy of Belgium

Belgium is often overlooked as a country of immigration because of its size and its less

known history of immigration, however, over the last three decades, Belgium has become a

country of settlement for many different kinds of migrants. Policies with regard to 323

migration, asylum, and integration have largely been responsive, reacting to circumstantial

economic or humanitarian needs, rather than pursuing a long-term vision. Similarly, 324

citizenship and integration policies were shaped in a laissez-faire way for many years. But 325

public criticism and the rise of the right-wing parties have forced policymakers to develop

new policies and legislations in a more consistent and steady way. This new approach has 326

become most observable in the areas of asylum and family reunification. The decision of 327

the Belgian Aliens Office introducing a quota allowing no more than 50 people per day for

registration of asylum seekers at the “Klein Kasteeltje” (the temporary registration location

for asylum seekers as of 3 December 2018) is only one of many reflections of the evolving

approach of Belgian authorities. 328

Over the past decade, the Belgian government has struggled to ensure sufficient capacity for

receiving asylum seekers. Before the 2007 Reception Law, no material support framework 329

existed for asylum applicants beyond the admissibility phase of the procedure. In order to 330

minimize the implications of increasing reception needs, the government has attempted to

address this issue by offering more financial and human resources to systematically expand

reception places and optimize the process and follow-up of asylum procedures. Similarly, 331

323 Petrovic M, 'Belgium: A Country Of Permanent Immigration' (migrationpolicy.org, 2019) <https://www.migrationpolicy.org/article/belgium-country-permanent-immigration> accessed 19 October 2019 324 ibid. 325 ibid. 326 ibid. 327 ibid. 328 'Belgium: Barriers To Registration Of Asylum Applications | Asylum Information Database' (Asylumineurope.org, 2019) <https://www.asylumineurope.org/news/13-12-2018/belgium-barriers-registration-asylum-applications> accessed 19 October 2019 329 Petrovic M, 'Belgium: A Country Of Permanent Immigration' (migrationpolicy.org, 2019) <https://www.migrationpolicy.org/article/belgium-country-permanent-immigration> accessed 20 October 2019 330 ibid. 331 ibid.

policymakers of Belgium have been struggling to respond to the intensifying problem of

unauthorized and illegal migration. Therefore, Belgium has had numerous attempts to 332

address this with a longstanding voluntary return policy in collaboration with the

International Organization for Migration, bilateral agreements, and regularization programs.

Academic circles are included to this solution-finding process and many academic events, 333

such as the “Regularisation of Undocumented Migrants in Belgium” event organized by Vrije

Universiteit Brussel, are being held. New regularization criteria were introduced in 2009, 334

but the subsequent campaign in 2009 has been received with mixed feelings by both the

supporters and opponents: it was perceived as a piecemeal approach to an issue which

requires comprehensive answers, i.e. not just legislative but also structural and financial

solutions. 335

Another factor that causes complexity with regard to the issues of migration and integration,

is the dual linguistic and political system of Belgium: while public opinion in Flanders has

been predominated by a (center-)right approach, the public opinion in Wallonia has always

been much more (center-)left. Accordingly, debates on migration, integration, and Islam have

been more polemic and heated in Flanders than in Wallonia. 336

Despite all the aforementioned problems, several steps have been taken at the federal,

regional, and local sphere to target issues coming along with migration, asylum, and

integration. At the federal legislative level, important reforms concerning family 337

reunification, asylum, and citizenship have been passed and both the Flanders region and

Wallonia region with their Flemish and French-speaking communities have reformed

integration and social inclusion policies in the last years, even though this area remains a

work in progress. 338

332 ibid. 333 ibid. 334 'Regularisation Of Undocumented Migrants In Belgium' (Vub.be, 2019) <https://www.vub.be/en/events/2019/regularisation-of-undocumented-migrants-in-belgium> accessed 20 October 2019 335 Petrovic M, 'Belgium: A Country Of Permanent Immigration' (migrationpolicy.org, 2019) <https://www.migrationpolicy.org/article/belgium-country-permanent-immigration> accessed 20 October 2019 336 ibid. 337 ibid. 338 ibid.

2. Asylum procedures in Belgium

The first step to asylum in Belgium is submitting an application to the Belgian Immigration

Office. The asylum applications are processed by the Belgian asylum office, where it can 339

take 3 to 6 months to process the applications coming from the asylum seekers. These 340

people will have to go through an interview where they explain their motives behind their

fleeing and the asylum application. The Belgian authorities will, under the consideration of 341

all relevant information, decide whether the respective case fits with the 1951 Geneva

Convention and its definition of a refugee. According to Article 1 of this Convention, a 342

refugee is defined as a person who “owing to well-founded fear of being persecuted for

reasons of race, religion, nationality, membership of a particular social group or political

opinion, is outside the country of his nationality and is unable or, owing to such fear, is

unwilling to avail himself of the protection of that country”. Accordingly, a person, who 343

fled from his or her own country for economic reasons or out of poverty will unlikely receive

asylum. In case the asylum is rejected and the person is not satisfied with the decision of 344

the Belgian asylum office, a judicial appeal can be made against it within 30 days. 345

Asylum in Belgium is awarded for an unlimited amount of time, but if a refugee does not

receive asylum status, he or she may receive subsidiary protection, which only grants

residence in the country for a limited amount of time. 346

II. Timeline of the Case

a. Situation of the family

339 'What Does Belgium’S Asylum Policy Look Like?' (InfoMigrants, 2019) <https://www.infomigrants.net/en/post/4759/what-does-belgium-s-asylum-policy-look-like> accessed 20 October 2019 340 ibid. 341 ibid. 342 ibid. 343 'Refugee Status Under International Law' (European Parliamentary Research Service Blog, 2019) <https://epthinktank.eu/2015/10/27/refugee-status-under-international-law/> accessed 20 October 2019 344 'What Does Belgium’S Asylum Policy Look Like?' (InfoMigrants, 2019) <https://www.infomigrants.net/en/post/4759/what-does-belgium-s-asylum-policy-look-like> accessed 20 October 2019 345 ibid. 346 ibid.

The applicants, M.N., B.H., O.N., and T.N, a married couple and their two children, are

Syrian nationals who were born in 1978, 1984, 2011 and 2008 and live together in the city of

Aleppo. The first applicant (M.N), who is the father of the family, works as a manager of a 347

firm and is a member of the Syrian Chamber of Commerce. The family was living at an 348

uncle’s house after their own home had been destroyed by the combats between rebel groups

and regime forces. As a result of these developments, the family (members) found 349

themselves in constant fear for their lives and in appalling conditions without electricity and

access to drinking water. At that time, moving to Lebanon was unquestionable for the 350

family, since it no longer registered refugees and even registered refugees lived under

precarious conditions. The same was valid for Turkey whose borders were closed. 351 352

Bearing this lack of nearby options in mind, the family decided to apply for humanitarian

visas in Belgium: the Syrian family established a connection with a Belgian family who was

willing to bear all costs and host them. In order to apply for the short-term visas, the family 353

went to the Belgian embassy situated in Beirut, Lebanon. 354

On September 13, 2016, the Belgian Aliens Office (Office des Étrangers) refused to issue

visas that the family had requested from the Belgian embassy in Beirut on the basis of the

Community Code on Visas (Article 25, paragraph 1(a)). This code establishes the 355

procedures and conditions for issuing visas for short stays in and transit through the territories

347 'Grand Chamber Hearing Concerning A Refusal To Issue Visas To A Syrian Family Wishing To Apply For Asylum In Belgium' (Hudoc.echr.coe.int, 2019) <https://hudoc.echr.coe.int/eng-press#{%22fulltext%22:[%223599/18%22],%22sort%22:[%22kpdate%20Descending%22]}> accessed 21 October 2019 348 'Grand Chamber Hearing Of M.N. And Others V. Belgium (24 April 2019)' <https://www.echr.coe.int/Pages/home.aspx?p=hearings&w=359918_24042019&language=en&c=&py=2019> accessed 25 November 2019 349 Schmalz D, 'Will The Ecthr Shake Up The European Asylum System?' (Verfassungsblog, 2019) <https://verfassungsblog.de/will-the-ecthr-shake-up-the-european-asylum-system/> accessed 24 October 2019 350 ibid. 351 ibid. 352 ibid. 353 ibid. 354 Schmalz D, 'Will The Ecthr Shake Up The European Asylum System?' (Verfassungsblog, 2019) <https://verfassungsblog.de/will-the-ecthr-shake-up-the-european-asylum-system/> accessed 24 October 2019 355 'Grand Chamber Hearing Concerning A Refusal To Issue Visas To A Syrian Family Wishing To Apply For Asylum In Belgium' (Hudoc.echr.coe.int, 2019) <https://hudoc.echr.coe.int/eng-press#{%22fulltext%22:[%223599/18%22],%22sort%22:[%22kpdate%20Descending%22]}> accessed 21 October 2019

of EU states. The Office (via the Belgian embassy in Beirut) stated that the intended 356

duration of stay exceeded 90 days, since the family openly stated that they would apply for

asylum in Belgium. It added that diplomatic personnel working in the Belgian diplomatic 357

mission had informed the family about the incompatibility of their demand with the

Community Code on Visas. Against the denial of their visa application, the Syrian family 358

demanded for an interim injunction pointing out that the assessment did not sufficiently take

their fundamental rights positions into consideration. But on October 7, 2016, the Aliens 359

Appeals Board (Conseil du Contentieux des Etrangers, which is the administrative

jurisdiction competent for immigration and asylum) ordered a stay of execution of the 360

Aliens Office’s decisions acting under the urgent procedure. It stated that there was a 361

serious risk of violation of Article 3 of the European Convention of Human Rights having

regard to the security and political situation in Aleppo. In addition, the Aliens Appeal 362

Board instructed the State to reconsider its decision and take a new one within 48 hours. 363

Nonetheless, the Aliens Office insisted on its point of view and issued new decisions refusing

the visa requests, whose execution was again suspended by the Aliens Appeals Board. The 364

Aliens Appeal Board ordered the issuance of visas (valid for 3 months in order to protect

their interests) or laissez-passer to the family. Meanwhile, the applicants lodged 365

356 'EUR-Lex - Jl0028 - EN - EUR-Lex' (Eur-lex.europa.eu, 2019) <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Ajl0028> accessed 21 October 2019 357 Schmalz D, 'Will The Ecthr Shake Up The European Asylum System?' (Verfassungsblog, 2019) <https://verfassungsblog.de/will-the-ecthr-shake-up-the-european-asylum-system/> accessed 24 October 2019 358 'Grand Chamber Hearing of M.N. And Others V. Belgium (24 April 2019)' <https://www.echr.coe.int/Pages/home.aspx?p=hearings&w=359918_24042019&language=en&c=&py=2019> accessed 25 November 2019 359 ibid. 360 'The Ecthr Confronted To A Question On “Humanitarian Visas”. An Analysis Of The Pending Case M.N. And Others V. Belgium (N° 3599/18)' (International Law Blog, 2019) <https://internationallaw.blog/2019/07/31/the-ecthr-confronted-to-a-question-on-humanitarian-visas-an-analysis-of-the-pending-case-m-n-and-others-v-belgium-n-3599-18/> accessed 22 October 2019 361 'Grand Chamber Hearing Concerning A Refusal To Issue Visas To A Syrian Family Wishing To Apply For Asylum In Belgium' (Hudoc.echr.coe.int, 2019) <https://hudoc.echr.coe.int/eng-press#{%22fulltext%22:[%223599/18%22],%22sort%22:[%22kpdate%20Descending%22]}> accessed 21 October 2019 362 ibid. 363 ibid. 364 ibid. 365 'The Ecthr Confronted To A Question On “Humanitarian Visas”. An Analysis Of The Pending Case M.N. And Others V. Belgium (N° 3599/18)' (International Law Blog, 2019) <https://internationallaw.blog/2019/07/31/the-ecthr-confronted-to-a-question-on-humanitarian-visas-an-analysis-of-the-pending-case-m-n-and-others-v-belgium-n-3599-18/> accessed 22 October 2019

applications for judicial review of the Alien Office’s decision, but these were dismissed by

the Aliens Appeals Board indicating that the decisions of September 13, 2016 (refusing to

issue visas for the members of the affected family) had become final. 366

The applicants brought proceedings before the Brussels Court of First Instance, as the

Belgian authorities (i.e. the Belgian Aliens Office) refused to execute the Aliens Appeals

Board’s judgement of October 7, 2016. The Brussels French-language Court of First 367

Instance ordered the State to comply with the abovementioned judgement. Afterwards, the 368

Brussels Court of Appeal published its judgement of December 7, 2016 supporting and

upholding the order that the State was to execute the decision of the Aliens Appeals Board. 369

But given the outcome of the applications for judicial review before the Aliens Appeals

Board, the Court of Appeal reconsidered its judgement of December 7, 2016 and held on 30

June, 2016 that its former judgement was no longer relevant and that no penalties were due

for non-compliance with the Aliens Appeals Board’s order. In the meantime 370

(November-December 2016), M.N. has taken several trips to Lebanon, the United Arab

Emirates, and India. 371

On January 10, 2018, the Syrian family lodged the application with the European Court of

Human Rights. The applicant party complained about the Belgian states’ refusal to execute 372

the measures ordered by the Aliens Appeals Board in its judgement of 7 October 2016,

alleging that they were responsible for the creation of a situation contrary to Article 3 of the

Convention without the possibility of remedying it effectively. They also complained that 373

366 'Grand Chamber Hearing Concerning A Refusal To Issue Visas To A Syrian Family Wishing To Apply For Asylum In Belgium' (Hudoc.echr.coe.int, 2019) <https://hudoc.echr.coe.int/eng-press#{%22fulltext%22:[%223599/18%22],%22sort%22:[%22kpdate%20Descending%22]}> accessed 22 October 2019 367 ibid. 368 ibid. 369 ibid. 370 ibid. 371 'Grand Chamber Hearing of M.N. And Others V. Belgium (24 April 2019)' <https://www.echr.coe.int/Pages/home.aspx?p=hearings&w=359918_24042019&language=en&c=&py=2019> accessed 25 November 2019 372 Kohnen K, 'ECHR: Grand Chamber Hearing In The Case Of M.N. And Others V. Belgium On 24 April 2019 [Refusing Of Visas With A View To Applying For Asylum In Belgium On Humanitarian Grounds]' (Bayerischer Rechts- und Verwaltungsreport (BayRVR), 2019) <https://bayrvr.de/2019/03/29/echr-grand-chamber-hearing-in-the-case-of-m-n-and-others-v-belgium-on-24-april-2019-refusing-of-visas-with-a-view-to-applying-for-asylum-in-belgium-on-humanitarian-grounds/> accessed 28 October 2019 373 ibid.

it was impossible for them to pursue (through the courts) the execution of the measures

ordered by the Aliens Appeals Board. While submitting their application to the European 374

Court of Human Rights, they relied on Article 1 (obligation to respect human rights), Article

3 (prohibition of inhuman or degrading treatment), Article 6 (right to a fair trial) and Article

13 (right to an effective remedy). 375

Image 8: The European Court of Human Rights 376

b. The interpretation of “jurisdiction”

The case at hand also comprises the question, if the decision of the Belgian state to decline

the visa applications can be considered as jurisdiction over the Syrian family. While the 377

interpretation of jurisdiction can be derived from prior jurisprudence of the European Court

of Human Rights and other courts, it is important to determine a broader conception of how

how to delimitate the obligations of (signatory) states. 378

374 ibid. 375 ibid. 376 'The European Court Of Human Rights' (Council of Europe Office in Georgia, 2019) <https://www.coe.int/en/web/tbilisi/europeancourtofhumanrights> accessed 30 October 2019 377 Schmalz D, 'Will The Ecthr Shake Up The European Asylum System?' (Verfassungsblog, 2019) <https://verfassungsblog.de/will-the-ecthr-shake-up-the-european-asylum-system/> accessed 29 October 2019 378 ibid.

Pursuant to the first article of the European Convention on Human Rights, the contracting

parties are obliged to secure “to everyone within their jurisdiction the rights and freedoms”

that are guaranteed in the Convention. The used term of “jurisdiction” generally exists on 379

the territory of state, nonetheless it can also exist extraterritorially, i.e. beyond the borders of

the state, if the respective state exercises effective control or authority over persons. 380

Hitherto, the criterion of effective control has been interpreted as a physical control by the

Court, but this interpretation and detailing of extraterritorial jurisdiction has mostly taken

place in the context of military operations (e.g. Al-Skeini and Others. v. the United

Kingdom). In another case, namely M. v. Denmark, a man trying to escape from East 381

Germany entered the Danish embassy in East Berlin and refused to leave the premises of the

embassy. At the request of the Danish ambassador, the police officers of East Germany 382

entered the building and took the applicant away. In this case, the European Court of 383

Human Rights confirmed that “authorised agents of a State, including diplomatic or consular

agents, brought other people or property within the jurisdiction of that State to the extent that

they exercised authority over them”. Even though, there are similarities with the case of 384

M.N and Others v. Belgium, there is a significant difference: the Syrian family entered and

left the premises of the Belgian embassy in Beirut of their own free will. This matter of fact 385

will most probably lead to discussions upon the existence of control and authority exercised

by the state of Belgium. 386

The Belgian authorities have stated that diplomatic personnel did not exercise any effective

control or authority over the Syrian family and added that the Syrian nationals both came and

379 'Convention For The Protection Of Human Rights And Fundamental Freedoms' (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 29 October 2019 380 Schmalz D, 'Will The Ecthr Shake Up The European Asylum System?' (Verfassungsblog, 2019) <https://verfassungsblog.de/will-the-ecthr-shake-up-the-european-asylum-system/> accessed 29 October 2019 381 ibid. 382 'Extra-Territorial Jurisdiction Of States Parties To The European Convention On Human Rights' (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/FS_Extra-territorial_jurisdiction_ENG.pdf> accessed 29 October 2019 383 ibid. 384 ibid. 385 'Grand Chamber Hearing of M.N. And Others V. Belgium (24 April 2019)' <https://www.echr.coe.int/Pages/home.aspx?p=hearings&w=359918_24042019&language=en&c=&py=2019> accessed 25 November 2019 386 Schmalz D, 'Will The Ecthr Shake Up The European Asylum System?' (Verfassungsblog, 2019) <https://verfassungsblog.de/will-the-ecthr-shake-up-the-european-asylum-system/> accessed 29 October 2019

left the embassy building on their own free will. Furthermore, Belgium stated that the 387

rejection of the aforementioned visa applications would not lead to the creation of a

jurisdictional link, since this assumption would unlawfully broaden the jurisdiction of a

country, and thus the responsibility of it. Some even argue that the artificial creation of 388

such a jurisdictional link could infringe the principle of state sovereignty, as well as the

principle of non-interference, which are two indispensable principles of international law. 389

Referring to the decision taken by the European Court of Human Rights in the case of Abdul

Wahab Khan v. United Kingdom , the Belgian state insisted on the non-existence of its 390

jurisdiction, even though the applicants brought the case before the domestic courts acting in

Belgium. Taking all these arguments into account, the defendant party, being Belgium, put 391

forward that the positive obligation of protecting persons in need and respectively issuing

humanitarian visas is not valid in the case at hand, since the European Court of Human

Rights only recognises this type of positive obligation when affected persons find themselves

under the jurisdiction of the respective contracting state. 392

c. Judicial processes before the Belgian courts and the question of effective remedy

In the case of the Syrian family, the Belgian Aliens Office representing the state, is the

decision-taking public body, whose decision is brought before national courts. Since the 393

applicant party insisted on the issuance of their visa, several Belgian judiciary instances have

been involved in the case at hand. These include the Aliens Appeals Board (which actually 394

serves as an administrative control mechanism over the decisions taken by the Aliens Office),

the Brussels Court of First Instance, and the Court of Appeals. Until the judgement of 30 395

387 'Grand Chamber Hearing of M.N. And Others V. Belgium (24 April 2019)' <https://www.echr.coe.int/Pages/home.aspx?p=hearings&w=359918_24042019&language=en&c=&py=2019> accessed 25 November 2019 388 ibid. 389 ibid. 390 'ABDUL WAHAB KHAN V. THE UNITED KINGDOM' (Hudoc.echr.coe.int, 2019) <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-141293%22]}> accessed 29 October 2019 391 'Grand Chamber Hearing of M.N. And Others V. Belgium (24 April 2019)' <https://www.echr.coe.int/Pages/home.aspx?p=hearings&w=359918_24042019&language=en&c=&py=2019> accessed 25 November 2019 392 ibid. 393 Schmalz D, 'Will The Ecthr Shake Up The European Asylum System?' (Verfassungsblog, 2019) <https://verfassungsblog.de/will-the-ecthr-shake-up-the-european-asylum-system/> accessed 30 October 2019 394 ibid. 395 ibid.

June 2017 by the Court of Appeal, all above mentioned instances decided in favor of the

standpoint of the Aliens Appeals Board (supporting the issuance of visas to family members),

but the alteration of the judgement of 7 December 2016 has changed the course of things. 396

Since the Brussels Court of Appeals is the judicial authority having the final say, the family

did not have any further opportunities to legally claim their rights. In that regard, the 397

Aleppine family suggests that the judiciary remedy did not allow them to efficiently seek and

defend their rights and freedoms arising from the provisions of the European Convention on

Human Rights. In contrary, the Belgian state insisted that the family was, at any level of 398

jurisdiction, able to express their worries before independent and impartial courts (both

within legal and administrative proceedings) and to complain of possible violations of their

fundamental rights in order to obtain possible remedy. 399

A further need for discussion arises upon the matter of legality of the Aliens Office’s

discretion to not apply the order coming from the Aliens Appeals Board. While some 400

argue, that the Belgian bureaucracy used remedies provided for by law in order to adequately

secure public order and safety, others defend the thesis that it has arbitrarily decided not to

enforce legal decision, and thus abused its executive power. 401

396 ibid. 397 ibid. 398 'Grand Chamber Hearing Of M.N. And Others V. Belgium (24 April 2019)' <https://www.echr.coe.int/Pages/home.aspx?p=hearings&w=359918_24042019&language=en&c=&py=2019> accessed 25 November 2019 399 ibid. 400 ibid. 401 ibid.

III. Claims

a. Claims of M.N. and Others

1) M.N. and Others claim that Belgium has violated Article 1 of the European Convention on

Human Rights since Belgium had the positive obligation of securing the freedoms and rights

of everyone under their jurisdiction.

2) M.N. and Others claim that they were clearly under the jurisdiction of Belgium as the state

exercised effective control and authority over them.

3) M.N. and Others claim that Belgium has violated Article 3 of the European Convention on

Human Rights as they have not taken reasonable measures to prevent inhuman or degrading

treatment.

4) M.N. and Others claim that granting the demanded visa was the only effective way of

protecting fundamental rights which were endangered under the circumstances present in

Aleppo.

5) M.N. and Others claim that the formal legal basis has no importance faced with the

absolute nature of the rights designated in Article 3 and therefore the Syrian family is

unlawfully deprived of their absolute rights.

6) M.N. and Others claim that there can be constraints on the jurisdiction of states to allow

the entrance of third country nationals into their territories, bearing in mind that the

provisions of Article 3 have an absolute nature.

7) M.N. and Others claim that Belgium has violated Article 6 of the European Convention on

Human Rights referring to the decisions taken in favour of their demands, which have been

ignored by the Belgian Aliens Office, i.e. the Belgian state.

8) M.N. and Others claim that, despite the decisions of 3 administrative judges, 3 civil

jurisdiction, unilateral procedures, and advisory procedures, which have all acknowledged the

necessity of granting visas to the applicants, the Belgium state has abused its executive

power, and thus injured the family’s right to a fair trial.

9) M.N. and Others claim that Belgium has violated Article 13 of the European Convention

on Human Rights indicating that the Brussels Court of Appeals’ judicial authority having the

final say, did not allow them to embrace any further opportunities to legally claim their

rights.

10) M.N. and Others claim that the judiciary remedy did not allow them to efficiently seek

and defend their rights and freedoms arising from the provisions of the European Convention

on Human Rights.

b. Claims of Belgium

1) Belgium claims that the applicants did not found themselves under the jurisdiction of

Belgium within the meaning of Article 1 of the European Convention on Human Rights.

2) Belgium claims that the premises of the Belgian embassy in Lebanon cannot be

categorized as national territory and that the concept of extraterritorial jurisdiction is invalid

because of the absence of effective control and authority.

3) Belgium claims that judicial processes, which have taken place before Belgian courts do

not bring the applicants under Belgian jurisdiction.

4) Belgium claims that they did not violate Article 3 of the European Convention on Human

Rights, as the state had no positive obligation to offer visas to the Syrian family.

5) Belgium claims that a positive obligation imposing the issuance of short-term visa with a

view to seek asylum must have a legal basis, such as provisions in domestic or community

law, which are absent in the case.

6) Belgium claims that there are no sufficient indicators backing the necessity of the family’s

migration to another country.

7) Belgium claims that the Syrian family has not shown willingness to take the less

complicated path of seeking asylum in a nearby country or countries that the father of the

family has been to in 2016.

8) Belgium claims that the issuance of humanitarian visas and asylum is a reflection of

political rights which are not referred to in Article 6 of the European Convention on Human

Rights, which is why this article is considered to be inadmissible.

9) Belgium claims that the decision of the Belgian Aliens Office not to enforce the order of

the judicial organs was not an arbitrary decision, but the utilization of legal avenues in order

to fulfill its obligation of ensuring public order and security.

10) Belgium claims that the order of the Aliens Appeals Board was unenforceable and that

the Aliens Office brought the unenforceable nature of this order before the competent courts.

11) Belgium claims that they have not violated Article 13 of the European Convention on

Human Rights, since the Syrian family was able to put forward all their legal arguments

before independent and impartial courts at any level of jurisdiction and complain of possible

violations of their fundamental rights in order to obtain possible remedy.

B. APPLICABLE LAW

Important Note: The task of the European Court of Human Rights is to ensure that States

respect and act according to the rights and guarantees set out in the European Convention on

Human Rights. Respectively, the Court evaluates and decides upon the applications and 402

cases under the consideration of the Convention’s provisions. Therefore, the applicant 403

cannot complain of a violation of any legal instrument other than the European Convention

on Human Rights. 404

However, for the facilitation of a coherent, fair, and just judgement, all relevant sources of

international law will be included in the “Applicable Law” section.

I. Treaties and Conventions

a. The European Convention on Human Rights

1. Article 1- Obligation to respect Human Rights

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights

and freedoms defined in Section I of this Convention.” 405

The engagement undertaken by a Contracting State is confined to securing the rights and

freedoms to persons within its own jurisdiction. A state can be held responsible, only if it 406

has exercised jurisdiction over the affected persons. Within the meaning of Article 1, a 407

State’s jurisdiction is primarily territorial, whereas other bases of jurisdiction are considered

to be exceptional and require special justification in the particular circumstances of each case.

408

402 (Echr.coe.int, 2019) <https://www.echr.coe.int/Documents/Questions_Answers_ENG.pdf> accessed 10 November 2019 403 ibid. 404 ibid. 405 'European Convention On Human Rights' (2019) <https://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 10 November 2019 406 'Guide On Article 1 Of The European Convention On Human Rights' (Echr.coe.int , 2019) <https://www.echr.coe.int/Documents/Guide_Art_1_ENG.pdf> accessed 24 November 2019 407 ibid. 408 ibid.

2. Article 3- Prohibition of torture

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

409

This article emphasizes that no one should experience torture, inhuman treatment, or

punishment and calls upon the Contracting States to avoid such exercices The idea that 410

Article 3 of the European Convention on Human Rights contains absolute rights is generally

accepted. This article is the only prohibition of the Convention, which is not subject to any 411

restrictions or exceptions. 412

3. Article 6- Right to a fair trial

“1. In the determination of his civil rights and obligations or of any criminal charge against

him, everyone is entitled to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law. Judgment shall be pronounced

publicly but the press and public may be excluded from all or part of the trial in the interests

of morals, public order or national security in a democratic society, where the interests of

juveniles or the protection of the private life of the parties so require, or to the extent strictly

necessary in the opinion of the court in special circumstances where publicity would

prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty

according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the

nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

409 'European Convention On Human Rights' (2019) <https://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 10 November 2019 410 411 'Does Article 3 Of The European Convention On Human Rights Enshrine Absolute Rights? - EJIL' (Ejil.org, 2019) <http://www.ejil.org/article.php?article=665&issue=49> accessed 24 November 2019 412 Heinrich B, 'Artikel 3 EMRK – Verbot Der Folter' (Jura.uni-tuebingen.de, 2019) <https://www.jura.uni-tuebingen.de/professoren_und_dozenten/heinrich/materialien/materialien-zur-europaeischen-konvention-zum-schutze-der-menschenrechte-und-grundfreiheiten-emrk-pdf-dateien/artikel-3-2013-verbot-der-folter> accessed 24 November 2019

(c) to defend himself in person or through legal assistance of his own choosing or, if he

has not sufficient means to pay for legal assistance, to be given it free when the

interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and

examination of witnesses on his behalf under the same conditions as witnesses against

him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the

language used in court.” 413

The right to a fair trial is a basic principle of the rule of law securing the right to a proper

administration of justice. The protection provided by Article 6 extends to those disputes 414

involving a civil right, as well as to the determination of any criminal charge against an

individual. The scope of “civil rights” is disputable and jurisprudence on what does or does 415

not constitute such a right is complex and undecided. Its coverage is wide-ranging and it 416

consists of different components in criminal and civil trials. Since the case at hand does not 417

comprise any criminal law issues, this part will only refer to the civil law facette of this

principle. This right includes components, such as:

1. the right to be heard by an independent and impartial decision-taker;

2. the right to a public hearing;

3. the right to a decision within a reasonable time;

4. the right to the access of all relevant information;

5. the right to admissibility and assessment of evidence;

6. the right to legal representation;

413 'European Convention On Human Rights' (2019) <https://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 10 November 2019 414 'Article 6 Of The European Convention On Human Rights | Wolters Kluwer Legal & Regulatory' (Wolters Kluwer Legal & Regulatory, 2019) <https://lrus.wolterskluwer.com/store/product/the-right-to-a-fair-trial-article-6-of-the-european-convention-on-human-rights/> accessed 24 November 2019 415 'Article 6 - UK Human Rights Blog' (UK Human Rights Blog, 2019) <https://ukhumanrightsblog.com/incorporated-rights/articles-index/article-6-of-the-echr/> accessed 24 November 2019 416 ibid. 417 'Article 6 Of The European Convention On Human Rights | Wolters Kluwer Legal & Regulatory' (Wolters Kluwer Legal & Regulatory, 2019) <https://lrus.wolterskluwer.com/store/product/the-right-to-a-fair-trial-article-6-of-the-european-convention-on-human-rights/> accessed 24 November 2019

7. the right to legal aid;

8. the right to the free assistance of an interpreter. 418 419

4. Article 13- Right to an effective remedy

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have

an effective remedy before a national authority notwithstanding that the violation has been

committed by persons acting in an official capacity.” 420

This article of the European Convention on Human Rights guarantees the availability of an

effective remedy at the national level of contracting states in order to enforce the provisions

of the Convention. The right to an effective remedy is a freestanding right and only arises 421

for consideration if the applicant raises a complaint concerning another substantive

Convention right. By the formulation “effective remedy before a national authority” , it is 422 423

understood that any kind of remedy (including judicial, administrative, as well as legislative)

is considered to be sufficient to meet the requirement set by this article. 424

b. The Universal Declaration of Human Rights

1. Article 5

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment.” 425

418 'Article 6: Right To A Fair Trial | Equality And Human Rights Commission' (Equalityhumanrights.com, 2019) <https://www.equalityhumanrights.com/en/human-rights-act/article-6-right-fair-trial> accessed 24 November 2019 419 'Article 6 Of The European Convention On Human Rights | Wolters Kluwer Legal & Regulatory' (Wolters Kluwer Legal & Regulatory, 2019) <https://lrus.wolterskluwer.com/store/product/the-right-to-a-fair-trial-article-6-of-the-european-convention-on-human-rights/> accessed 24 November 2019 420 'European Convention On Human Rights' (2019) <https://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 10 November 2019 421 Lee A, 'Focus On Article 13 ECHR' (Taylor & Francis, 2019) <https://www.tandfonline.com/doi/abs/10.5235/10854681.20.1.33?journalCode=rjdr20> accessed 24 November 2019 422 ibid. 423 'European Convention On Human Rights' (2019) <https://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 24 November 2019 424 TUMAY M, 'The Subsidiary Protection Of European Convention On Human Rights' (2009) 17 Selcuk Universitesi Hukuk Fakultesi Dergisi 425 'Universal Declaration Of Human Rights' (Ohchr.org, 2019) <https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> accessed 13 November 2019

This provision is a reflection of Article 3 of the European Convention on Human Rights.

2. Article 8

“Everyone has the right to an effective remedy by the competent national tribunals for acts

violating the fundamental rights granted him by the constitution or by law.“ 426

This provision is a reflection of Article 13 of the European Convention on Human Rights.

This article secures the means and legal paths enabling all individuals to obtain legal help and

access the judiciary system if that affected individual thinks that his/her rights have been

disrespected by both administrative and judiciary instances. 427

3. Article 10

“Everyone is entitled in full equality to a fair and public hearing by an independent and

impartial tribunal, in the determination of his rights and obligations and of any criminal

charge against him.“ 428

This provision is a reflection of Article 6 of the European Convention on Human Rights. The

right that has been dealt with in Article 10 includes the right to be present in court, to have a

speedy public trial before an independent court, and to have a lawyer (if necessary provided

at no cost). 429

4. Article 14

“1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.

426 'Universal Declaration Of Human Rights' (Ohchr.org, 2019) <https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> accessed 13 November 2019 427 'Stand Up For Human Rights' (Standup4humanrights.org, 2019) <https://www.standup4humanrights.org/en/article.html> accessed 18 December 2019. 428 'Universal Declaration Of Human Rights' (Ohchr.org, 2019) <https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> accessed 13 November 2019 429 'OHCHR | Universal Declaration Of Human Rights At 70: 30 Articles On 30 Articles - Article 10' (Ohchr.org, 2019) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23898&LangID=E> accessed 18 December 2019.

2. This right may not be invoked in the case of prosecutions genuinely arising from

non-political crimes or from acts contrary to the purposes and principles of the United

Nations.” 430

Article 14 of the Universal Declaration of Human Rights grants the right to seek and enjoy

asylum from prosecution. Under the umbrella of this article, millions of people have been 431

given life-saving protection as refugees, been able to rebuild their lives and often gone back

to their homes again once the danger passed. But the right to seek asylum is not unlimited: 432

Article 14 makes it clear that persons cannot be granted asylum simply to avoid prosecution

for non-political crimes or acts contrary to the purpose and principles of the United Nations.

433

c. 1951 Convention Relating to the Status of Refugees

1. Article 1(A)(2)- Definition of the term “refugee”

“As a result of events occurring before 1 January 1951 and owing to well-founded fear of

being persecuted for reasons of race, religion, nationality, membership of a particular social

group or political opinion, is outside the country of his nationality and is unable or, owing to

such fear, is unwilling to avail himself of the protection of that country; or who, not having a

nationality and being outside the country of his former habitual residence as a result of such

events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term “the country of his

nationality” shall mean each of the countries of which he is a national, and a person shall

not be deemed to be lacking the protection of the country of his nationality if, without any

valid reason based on well-founded fear, he has not availed himself of the protection of one

of the countries of which he is a national.” 434

430 'Universal Declaration Of Human Rights' (Ohchr.org, 2019) <https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> accessed 13 November 2019 431 '30 Articles On The 30 Articles - Article 14' (Standup4humanrights.org, 2019) <https://www.standup4humanrights.org/layout/files/30on30/UDHR70-30on30-article14-eng.pdf> accessed 17 November 2019 432 ibid. 433 ibid. 434 'Convention And Protocol Relating To The Status Of Refugees' (UNHCR, 2019) <https://www.unhcr.org/3b66c2aa10> accessed 13 November 2019

This article offers an accurate definition of a refugee and is globally accepted and recognized.

According to Article 1(A)(2), a refugee is a person who, owing to the fear of being 435

persecuted for reasons that are referred to in this article (e.g. persecution for the reason of

race), is unable or unwilling to avail himself of the protection of that country. Furthermore, 436

those who have no nationality and find themselves outside the country of their former

habitual residence and who are unable or unwilling to return to it are also included in the

definition set by the 1951 Convention. 437

2. Article 2- General Obligations

“Every refugee has duties to the country in which he finds himself, which require in

particular that he conform to its laws and regulations as well as to measures taken for the

maintenance of public order.” 438

This article underlines that every refugee has to act according to the laws, regulations, as well

as measures which have been taken by the hosting country. 439

3. Article 9- Provisional measures

“Nothing in this Convention shall prevent a Contracting State, in time of war or other grave

and exceptional circumstances, from taking provisionally measures which it considers to be

essential to the national security in the case of a particular person, pending a determination

by the Contracting State that that person is in fact a refugee and that the continuance of such

measures is necessary in his case in the interests of national security.” 440

This provision of the 1951 Convention Relating to the Status of Refugees implies that

Contracting States can take special measures in exceptional circumstances (e.g. war), when

435 Nasr L, 'International Refugee Law: Definitions And Limitations Of The 1951 Refugee Convention' <https://blogs.lse.ac.uk/humanrights/2016/02/08/international-refugee-law-definitions-and-limitations-of-the-1951-refugee-convention/> accessed 24 November 2019 436 ibid. 437 ibid. 438 'Convention And Protocol Relating To The Status Of Refugees' (UNHCR, 2019) <https://www.unhcr.org/3b66c2aa10> accessed 13 November 2019 439 ibid. 440 ibid.

the introduction of these measures are considered to be vital in the interests of national

security and public order. 441

II. Directives and regulations

a. Regulation No 810/2009 of the European Parliament and of the Council of 13

July 2009 establishing a Community Code on Visas

1. Article 6- Consular territorial competence

“1. An application shall be examined and decided on by the consulate of the competent

Member State in whose jurisdiction the applicant legally resides.

2. A consulate of the competent Member State shall examine and decide on an application

lodged by a third-country national legally present but not residing in its jurisdiction, if the

applicant has provided justification for lodging the application at that consulate.” 442

This article of the regulation arranges the competence of national representations situated in

foreign countries and allow them to examine and decide upon the visa application of

third-party nationals. 443

2. Article 25- Issuing of a visa with limited territorial validity

“1. A visa with limited territorial validity shall be issued exceptionally, in the following

cases:

(a) when the Member State concerned considers it necessary on humanitarian grounds, for

reasons of national interest or because of international obligations,

(i) to derogate from the principle that the entry conditions laid down in Article

5(1)(a), (c), (d) and (e) of the Schengen Borders Code must be fulfilled;

441 ibid. 442 (REGULATION (EC) No 810/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 July 2009 establishing a Community Code on Visas, 2019) <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32009R0810&from=EN> accessed 13 November 2019 443 ibid.

(ii) to issue a visa despite an objection by the Member State consulted in accordance

with Article 22 to the issuing of a uniform visa; or

(iii) to issue a visa for reasons of urgency, although the prior consultation in

accordance with Article 22 has not been carried out;

or

(b) when for reasons deemed justified by the consulate, a new visa is issued for a stay during

the same six-month period to an applicant who, over this six-month period, has already used

a uniform visa or a visa with limited territorial validity allowing for a stay of three months.

2. A visa with limited territorial validity shall be valid for the territory of the issuing Member

State. It may exceptionally be valid for the territory of more than one Member State, subject

to the consent of each such Member State.

3. If the applicant holds a travel document that is not recognised by one or more, but not all

Member States, a visa valid for the territory of the Member States recognising the travel

document shall be issued. If the issuing Member State does not recognise the applicant’s

travel document, the visa issued shall only be valid for that Member State.

4. When a visa with limited territorial validity has been issued in the cases described in

paragraph 1(a), the central authorities of the issuing Member State shall circulate the

relevant information to the central authorities of the other Member States without delay, by

means of the procedure referred to in Article 16(3) of the VIS Regulation.

5. The data set out in Article 10(1) of the VIS Regulation shall be entered into the VIS when a

decision on issuing such a visa has been taken.” 444

This directive of the European Parliament and the Council of Europe is an important

provision when it comes to issuance of short-term and territorially limited visa. The 445

application of the Syrian family was issued on the basis of this article. It sets the conditions 446

444 (REGULATION (EC) No 810/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 July 2009 establishing a Community Code on Visas, 2019) <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32009R0810&from=EN> accessed 13 November 2019 445 ibid. 446 'Grand Chamber Hearing Concerning A Refusal To Issue Visas To A Syrian Family Wishing To Apply For Asylum In Belgium' (Hudoc.echr.coe.int, 2019)

of the issuance of a limited territorial visa and emphasizes that this type of visa can be only

issued in exceptional cases and circumstances, leaving a wide range of decision possibilities

for the visa-providing countries. 447

3. Article 31- Refusal of visa

“1. Without prejudice to Article 25(1), a visa shall be refused:

(a) if the applicant:

(i) presents a travel document which is false, counterfeit or forged;

(ii) does not provide justification for the purpose and conditions of the intended stay;

(iii) does not provide proof of sufficient means of subsistence, both for the duration of

the intended stay and for the return to his country of origin or residence, or for the

transit to a third country into which he is certain to be admitted, or is not in a position

to acquire such means lawfully;

(iv) has already stayed for three months during the current six-month period on the

territory of the Member States on the basis of a uniform visa or a visa with limited

territorial validity;

(v) is a person for whom an alert has been issued in the SIS for the purpose of

refusing entry; 15.9.2009 Official Journal of the European Union L 243/15 EN

(vi) is considered to be a threat to public policy, internal security or public health as

defined in Article 2(19) of the Schengen Borders Code or to the international

relations of any of the Member States, in particular where an alert has been issued in

Member States’ national databases for the purpose of refusing entry on the same

grounds; or

(vii) does not provide proof of holding adequate and valid travel medical insurance,

where applicable;

<https://hudoc.echr.coe.int/eng-press#{%22fulltext%22:[%223599/18%22],%22sort%22:[%22kpdate%20Descending%22]}> accessed 21 October 2019 447 ibid.

or

(b) if there are reasonable doubts as to the authenticity of the supporting documents

submitted by the applicant or the veracity of their contents, the reliability of the statements

made by the applicant or his intention to leave the territory of the Member States before the

expiry of the visa applied for.

2. A decision on refusal and the reasons on which it is based shall be notified to the applicant

by means of the standard form set out in Annex VI.

3. Applicants who have been refused a visa shall have the right to appeal. Appeals shall be

conducted against the Member State that has taken the final decision on the application and

in accordance with the national law of that Member State. Member States shall provide

applicants with information regarding the procedure to be followed in the event of an appeal,

as specified in Annex VI.

4. In the cases referred to in Article 8(2), the consulate of the representing Member State

shall inform the applicant of the decision taken by the represented Member State.

5. Information on a refused visa shall be entered into the VIS in accordance with Article 12 of

the VIS Regulation.” 448

This provision enumerates reasons for the denial of a visa application, such as the

presentation of a false travel document, missing justification for the accession to the receiving

country, or the presence of an endangering factor for the public policy and internal security. 449

Furthermore, it stresses the obligation of the Member State to inform the applicant about the

outcome of the application. Last but not least, the applicant is granted the right to appeal, if 450

he or she is not satisfied with the decision and reasons which have been put forward. 451

b. Regulation No 604/2013 of the European Parliament and of the Council

448 (REGULATION (EC) No 810/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 July 2009 establishing a Community Code on Visas, 2019) <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32009R0810&from=EN> accessed 13 November 2019 449 ibid. 450 ibid. 451 ibid.

1. Article 3- Access to the procedure for examining an application for

international protection

“1. Member States shall examine any application for international protection by a

third-country national or a stateless person who applies on the territory of any one of them,

including at the border or in the transit zones. The application shall be examined by a single

Member State, which shall be the one which the criteria set out in Chapter III indicate is

responsible.

2. Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.

Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.

Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.

3. Any Member State shall retain the right to send an applicant to a safe third country, subject to the rules and safeguards laid down in Directive 2013/32/EU.” 452

The examination of an application for international protection is the main issue that is being dealt with in this article. It sets criteria for the specification of the responsible Member 453

State. The countries which are being confronted with international protection cases have, 454

according to this provision, an obligation to fairly examine incoming applications and demands. 455

452 'REGULATION (EU) No 604/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL' (Eur-lex.europa.eu, 2019) <https://eur-lex.europa.eu/eli/reg/2013/604/oj> accessed 13 November 2019 453 ibid. 454 ibid. 455 ibid.

III. Principles of International Law

a. The Principle of State Sovereignty

The principle of sovereignty is a basic and core principle of modern international law. 456

Sovereignty is an inalienable and necessary political and legal property of any state. There 457

are numerous definitions of this indispensable principle which are studied in the theoretical

works in the field of international law. The Soviet legal scholar G. Tunkin, for example, 458

defines this concept as “the inherent supremacy of the State in its territory and independence

in international relations”. Another attempt to define this principle came from the Swiss 459

jurist Max Huber who claimed that “sovereignty in the relations between states means

independence [and that] independence in relation to an area of the globe is the right to

exercise his functions within the state, excluding any other State”. 460

b. The Principle of Non-Interference

The doctrine of non-interference (also known as the principle of non-intervention) in

domestic affairs is the logical outcome of the principle of sovereignty. This principle 461

involves the right of every sovereign state to exercise its affairs without external interference,

thus restricting the ability of outside nations and organisations to interfere with the internal

affairs of another nation. Even though the emphasis in the UN Charter (Article 2(7)) and in 462

various related United Nations documents can be interpreted as an indicator of consensus,

456 Besson S, 'Sovereignty' (Opil.ouplaw.com, 2019) <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1472> accessed 24 November 2019 457 Gevorgyan K, 'CONCEPT OF STATE SOVEREIGNTY: MODERN ATTITUDES' <http://www.ysu.am/files/Karen_Gevorgyan.pdf> accessed 24 November 2019 458 ibid. 459 ibid. 460 ibid. 461 Kınacıoğlu M, 'The Principle Of Non-Intervention At The United Nations: The Carter Framework And The Legal Debate' (Sam.gov.tr, 2019) <https://sam.gov.tr/wp-content/uploads/2012/01/Muge-Kinacioglu.pdf> accessed 24 November 2019 462 Dubay C, 'A Refresher On The Principle Of Non-Intervention' (Judicialmonitor.org, 2019) <http://www.judicialmonitor.org/archive_spring2014/generalprinciples.html> accessed 24 November 2019

there are controversies with regard to its interpretation and disagreements concerning its

scope. 463

IV. Principles of Human Rights Law

a. Universality and Inalienability

All people everywhere in the world are entitled to human rights. The entire premise of the 464

framework is that people are entitled to these rights by virtue of being human. 465

b. Indivisibility

Human rights are indivisible and interdependent, which implies that in order to guarantee

civil and political rights, economic, social and cultural rights must also be ensured. 466

Consequently, all human rights have equal status and cannot be positioned in a hierarchical

order. The denial of one right invariably prevents the enjoyment of other rights. 467 468

c. Interdependence and Interrelatedness

Each human rights contributes to the realization of a person’s human dignity through the

satisfaction of his/her physical, psychological and developmental needs. As a result, the 469

fulfilment of one right mostly depends upon the realization of others. 470

d. Equality and Non-discrimination

463 Kınacıoğlu M, 'The Principle Of Non-Intervention At The United Nations: The Carter Framework And The Legal Debate' (Sam.gov.tr, 2019) <https://sam.gov.tr/wp-content/uploads/2012/01/Muge-Kinacioglu.pdf> accessed 24 November 2019 464 'Human Rights Principles' (Unfpa.org, 2019) <https://www.unfpa.org/resources/human-rights-principles> accessed 13 November 2019 465 'What Are The Basic Principles Of The Human Rights Framework?' (NESRI | National Economic & Social Rights Initiative, 2019) <https://www.nesri.org/programs/what-are-the-basic-principles-of-the-human-rights-framework> accessed 13 November 2019 466 ibid. 467 'Human Rights Principles' (Unfpa.org, 2019) <https://www.unfpa.org/resources/human-rights-principles> accessed 13 November 2019 468 ibid. 469 ibid. 470 ibid.

Human rights must be guaranteed without discrimination. All individuals are equal as 471

human beings and by virtue of the inherent dignity of each human person and therefore

should not suffer discrimination on the basis of race, color, age, language, gender, sexual

orientation, religion, (political) opinion, national, social or geographic origin, disability,

property, birth or other status as established by human rights standards. 472

e. Participation and Inclusion

People have a right to participate in how decisions are made regarding protection of their

rights. This includes but is not limited to having input on government decisions about 473

rights. Rights-based approaches require a high degree of participation by communities, 474

civil society, minorities, women, young people, indigenous peoples and other identified

groups. 475

f. Accountability and the Rule of Law

State and other duty-bearers have to comply with the legal norms and standards embedded in

international human rights instruments. Where these actors fail to do so, the respective 476

rights-holders are entitled to institute proceedings before the competent courts in accordance

with the rules and procedures provided by law. 477

471 'What Are The Basic Principles Of The Human Rights Framework?' (NESRI | National Economic & Social Rights Initiative, 2019) <https://www.nesri.org/programs/what-are-the-basic-principles-of-the-human-rights-framework> accessed 17 November 2019 472 'Human Rights Principles' (Unfpa.org, 2019) <https://www.unfpa.org/resources/human-rights-principles> accessed 17 November 2019 473 'What Are The Basic Principles Of The Human Rights Framework?' (NESRI | National Economic & Social Rights Initiative, 2019) <https://www.nesri.org/programs/what-are-the-basic-principles-of-the-human-rights-framework> accessed 17 November 2019 474 ibid. 475 'Human Rights Principles' (Unfpa.org, 2019) <https://www.unfpa.org/resources/human-rights-principles> accessed 17 November 2019 476 ibid. 477 ibid.

C. CONCLUSION

The Refugee Crisis which has been the result of the Syrian Civil War has drastically changed

the socio-political situation in Europe. Since the re-establishment of peace conditions in Syria

does not seem to be realistic, waves of migration and their implications will most probably

keep their topicality. The question of whether European countries are obliged to provide

access to the arriving persons is an important one and needs to be answered.

The dilemma between a state’s legitimate right to regulate the access to its territory and its

positive obligation to refugee and fundamental rights protection is a phenomenon that

affected countries face on a daily basis. In order to create a framework serving as a guiding

thread for these refugee-receiving states, international organisations, and especially judiciary

instances must determine basic principles.

In the case of M.N. and Others v. Belgium, the European Court of Human Rights will have to

deliver a legal response to the above mentioned dilemma and will, with its decision, either

broaden or diminish the states’ responsibilities. Thus, the Court must act attentively and take

all factors, which are involved in this issue, into consideration.

The applicant shall provide factual and legal grounds for its right of asylum and should aim at

persuading the judges that its was deprived of its rights during the processes which have

taken place under the Belgian jurisdiction. The defendant, on the other hand, shall respond to

the allegations put forward by the applicant party based on factual and legal thesis and

arguments. The judges of the European Court of Human Rights shall analyse the legal

arguments, facts, and evidence presented by both the applicant and defendant party and shall

declare its judgement covering all alleged violations of the European Convention on Human

Rights.

BIBLIOGRAPHY

I. Articles

Besson S, 'Sovereignty' (Oxford Public International Law 2011)

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